tv U.S. Senate CSPAN March 15, 2010 8:30am-12:00pm EDT
so i'm actually heartened as a private advocate that people moved in the right direction. >> host: and we are just about out of time. very quickly, tim sparapani, why is it necessary in your view to have public policy state directorsesome. >> guest: i think it's important at the state legislative level to have people who can talk to state legislators for exactly the reasons we've been talking about with australia. there will be a moment in some state around the country like my state of wisconsin, for example, where an unfortunate incident may occur, and the first reaction will be, let's regulate the internet. the internet has to be not only a national standard, one unified set of standard, but an international standards, and hopefully countries around the world will follow the u.s. lead and have an open and honest internet that shares information freely. at the state level, we have to make sure that open internet starts here at home and that all 50 states are operating under the same rules so that people's
communication isn't blocked at the border from wisconsin to illinois or wisconsin to minnesota. we shouldn't have those kind of rules to enforce certain norms on the rest of the country, particularly when they block people's speech. >> host: tim sparapani of facebook, cecilia kang of the washington post, thank you both for being on "the communicators." >> guest: my pleasure. >> host: thank you. in
>> a discussion, now, on the use of the filibuster, a parliamentary maneuver that blocks action on legislation unless three-fifths of the senators vote to end it. speakers include new mexico democrat tom udall who wants to change rules. the center for american progress action fund is the host of this event, it's about two hours. >> good morning, everyone. i'm jim thurber, i'm directer at american university, this is a joint forum with the center for american progress, and i want to say at the very beginning before we get into the program all of us are saddened by senator reid's wife's accident, injury of her daughter. his wife is in serious condition, if you didn't know.
they were rear ended yesterday at 1:00 by a tractor-trailer on interstate 95. they're both in the hospital right now, and a moment of silence, i think, would be good. to send good thoughts to the reid family. it's my pleasure to yet again work with scott lilly and the center for american progress. this is the 30th anniversary of our center. it happens to be the 30th anniversary at c-span, and we've had over 200 forums in 30 years, and c-span has covered many of them, but they usually cover, scott, the ones that we do together, and we've had five of them, and on issues related to the presidency, but also issues that are of importance to congress, and that's what we're doing today. we're going to have, as you know, a forum on the filibuster.
but to put the filibuster in context, it is a problem people think, i think it's a problem. it is, and there are efforts by senator udall who will be introduced later and others to change the rule, rule 22 on the cloture vote. but let's put it in the context of the perception of the american people of the institution of congress. and many other problems that are facing the institution. this is one problem, in my opinion, facing the institution, but we also have holds that clog the legislative work, delays in confirming executive branch officials. we really have a lack of true deliberation and debate often in the senate, there's a breakdown of the budget process frequently, it's not passed on time or it's changed every year. there's an excessive use of
earmarks. there's a debate as to whether they're excessive or not, but i think the american people think it's excessive and riders added to not only appropriation bills, but also tax bills, and sometimes they become a crutch to act on significant policy issues that cannot be acted by the authorizers. there's withholding sometimes of appropriations to fully fund authorization bills, there's a tendency towards government by continuing resolution. there's the nonuse or abuse of the conference committee. hasn't really met recently very often. and there's a lack of civility that the american people are concerned about, a lack of true bipartisanship. now, that's controversial because some people think that we don't need bipartisanship. some of this comes from the polarization of congress where there are fewer and fewer moderates. back in the 1970s a third of
the senate were considered moderates if lieu act at -- if you look at ideological support scores as we do in political science. now it's down to about 5-8% moderates in the senate and in the house of representatives. and then there's criticism of the institution for ineffective or no oversight of the executive branch. it is within these trends that we look at the filibuster, and these trends have led, in my opinion, to a serious decline of public confidence in the institution. trust in congress generally. and government generally and it's increased skepticism and discouraged public participation and trust in the institution of congress. the forum today is primarily on the filibuster, but it's within that context that we look at the filibuster. in conclusion many the introductory remarks, i'm reminded that change comes from elections. change come from freshman
frequently are. change in this particular case on the filibuster is coming from the class of 2006-2008 and, indeed, now in the leadership race in the senate the leaders are becoming focused on this issue. and the leader of this change on the filibuster is senator tom udall from, democrat from new mexico, and i'd like to have my colleague, scott lilly, here from the center of american progress introduce the senator at this point. >> it's always great to work with jim and american university, they're great partners in these kinds of events, and i hope you find it as useful to listen to as we've found it useful to prepare for. go back to 1954. it was halfway through the
eisenhower first term of the eisenhower administration, and there were 19 new democrats who were elected to the house of representatives. and when they got there, they found out that all the things that they'd campaigned on, all of the ideas that they had presented to their constituents about how the country needed to change and adapt were things that they really could do almost nothing about. the institution was, there'd been an election, and the institution had gone from republican chairman to democratic chairman. but the democratic chairmen were, in many cases, even more conservative than the republicans. they were old line southerners who'd been in the congress for decades and decades, they were extremely conservative on social grounds, certainly on civil rights, on economic issues, and these freshman found that it was next to impossible to get
anything done. one of the 19 new democrats was a young congressman from arizona named stuart udall. and stuart udall began meeting with a couple of other disgruntled younger members, lee metcalf of montana who'd come two years earlier and frank thompson who was elected later in 1955, and they typically met in gene mccarthy's office over in the cannon building and plotted how they were going to change the system. that little band grew into what became known as the democratic study group, and before stuart udall left the house of representatives to become secretary of interior in 1961, they'd already pulled off their first coup, they had increased the size of the house rules
committee which allowed speaker rayburn to gain control of that committee and block judge smith of virginia who was the chairman from controlling the floor agenda. that in turn made it possible for the kennedy administration to get the new frontier agenda to the house floor. so they already had that, that one victory before stuart udall left the house, but he was succeeded by his brother, mo, who immediately became a major figure in the reform movement. in 1969 he led the effort of the reformers to replace speaker mccormack who at that time was 78 years old and by most accounts was not really functioning very effectively as speaker. mo was crushed in that, in that effort which shows that reform's not easy because he said when he left the caucus, his famous
words comparing a caucus with a cactus. he said, you know, with a cactus the pricks are on the outside. [laughter] but at any rate, six years later the reformers did win in 1974 after the watergate landslide. they changed the house rules, they turned the institution upside down, they made committee chairmen subject to votes before the caucus, they removed three sitting committee chairmen, and the house of representatives was never the same again. it took 20 years from when stuart udall started meeting in gene mccarthy's office, but they finally did it, and they permanently changed it. i say that in part to say that even the biggest and most powerful of institutions with the most intimidating people running them can be changed if people are smart and stick to it.
and i also point that out to say that our speaker has the genes that it takes to do that. and so we're very pleased to have him. he has spent his life in public service. he was a federal prosecutor for a number of years, he was elected as attorney general of the state of new mexico and served two terms before he came to the house where he was a member for ten years and very much beloved in the house. there was great displeasure at the fact that he decided to run for the other body. but i think everybody is glad now that he's done that because he is someone who can be part of an institution, be loyal to the institution and still recognize the imperfections and the need for change. tom, thank you for coming. prison [applause] >> boy, that's an impressive
opening statement and an impressive introduction, and i thank you all for being here. i, my brothers, i have five brothers and sisters, and when you talk about gene, scott, they always say many h the family that none of them are in elective office, none of the five brothers or sisters are interested in running for office, they think i got the defective gene. that's what they say. [laughter] anyway, thank you, and it's great, it's going to be great to be on this wonderful panel. let me, also, echo what you said. i mean, we're a very small senate family, and our thoughts and prayers really go out today to senator reid and his family, and i hope i'll be able to give him some encouraging words in person in the next couple of days. jim, i couldn't agree with you more in terms of kind of setting the stage on the filibuster.
in my 11 years here in the congress, i mean, and now the first year in the senate the way i see the institution is it's an institution in much need of reform. you know, whether it's the committee structure, it used to be you specialized on a committee, now we're on so many committees we can't specialize. the appropriations part is labor, the biggest bill hardly ever gets to the floor anymore, and i know scott's going to talk about that. we have authorizing responsibilities where 250 programs or agencies don't come to the floor for their regular authorization. somebody told me the other day the department of justice has a mandatory requirement in the law that it be authorized every year. that doesn't happen. and then the thing that i think undermines and corrupts and is the most corrosive influence is
the fundraising. so i think we'll have an opportunity to talk about all of that as we, as we move on here on to the panel, but i'm going to focus now on senate rules reform and specifically talk about the filibuster. scott talked about my dad. after my election in 2008, my father gave me some good advice. he suggested that i reread the autobiography of clinton anderson, the man who held the same senate seat i now hold. anderson addressed many issues during his time in the senate, but the one that stood out to me was his dedication to making the senate a functional legislative body. it's a dedication we share. one of the main reasons i ran for the senate is because i saw
the world's greatest deliberative body turning into a graveyard of good ideas. after a year of observing this body in action or in many cases in lack of action, it's clear that we're in danger of becoming just that. in anderson's day the toxic partisanship we face today had not yet poisoned the system. but the manipulative use of the filibuster had already taken hold. it was used to block some of the most important legislation of that time including civil rights bills that now rank among the senate's greatest accomplishments. anderson heard the same thing from senate, from senate leadership that we hear today. he was told that changing the rules would never happen because of the two-thirds requirement to limit debate. in other words, any attempt to
change rule 22, the filibuster rule, would get filibustered. but anderson didn't agree. he knew the constitution, not the senate rules, gave each house the authority to adopt it rules by a majority vote. anderson's constitutional option was soundly based in constitutional interpretation and common law. article i, section 5 of the constitution clearly states, each house may determine the rules of it proceedings. each house may determine the rules of its proceedings. the constitution also explicitly requires a supermajority vote in seven instances for things like overriding a presidential veto or ratifying a treaty or amending the constitution. it clearly spells out when a supermajority vote is required.
and in stating that each house may determine it rule, a supermajority vote requirement is noticeably absent. there is also a long standing common law principle upheld in the supreme court that one legislature cannot bind it successors. liberals and conservatives alike have cited this principle to argue the senate can change it rules by a majority vote. professor steven call business si, a co-founder of the federalist society, stated in congressional testimony that to the extent that the senate rule, 22, purports to require a two-thirds majority to invoke choture on -- cloture on a rules change, rule 22 is unconstitutional. it is an ancient principle of anglo-american constitutional
law that one regularture cannot -- legislature cannot bind a succeeding legislature, end quote. armed with the constitution and common law on his side, senator anderson went to the floor in january 1953 and moved that the senate immediately consider the adoption of its rules. his motion was tabled, but he introduced it again at the beginning of the 85th congress. in the course of that debate, senator hubert humphrey presented a parliamentary inquiry to vice president nixon who was presiding over the senate. nixon understood the inquiry to address the basic question: do the rules of the senate continue from one congress to another? noting that there had never been a direct ruling on this question from the chair, nixon stated, and i quote, while the rules of
the senate have continued from one congress to another, the right of a current majority of the senate at the beginning of a new congress to adopt its own rules stemming as it does from the constitution itself cannot be restricted or limited by rules adopted by a majority of a previous congress. end quote. nixon went on to say that any provision to deny that right was unconstitutional. and i, i would also note on this point three vice presidents, democrats and republicans, sitting in the chair presiding as nixon did have all come to the same conclusion and to the same result. but despite nixon's opinion, anderson's motion was tabled. in the 1959 anderson again introduced the constitutional option. this time with the bipartisan
support of some 30 other senators. then-majority leader johnson wasn't happy with johnson's proposal -- wasn't happy with anderson's proposal. he saw it as gaining momentum and realized a majority of senators might join the cause. to prevent anderson's motion from receiving a vote, johnson came forward with his own compromise. he proposed changing rule 22 to reduce the required vote for cloture to two-thirds of the senators present and voting. johnson's compromise passed, but attempts to change the filibuster rule continued for more than a decade. rule 22 was last changed in 1975 when senators walter mondale and james pearson used the constitutional option to change the cloture requirement for most issues except rule changes to
three-fifths of those senators chosen and sworn. only three of my colleagues, senator byrd, inouye and leahy, were in the senate then and have ever had the opportunity to vote on rule 22. ninety-seven of us have never voted on the rule that prevents today's senate from passing critical legislation. all of this brings us to today. over the past couple of years, the impact of the filibuster has become even more pronounced. senators from both sides of the aisle have increasingly used it as a weapon of partisan warfare. you only have to look at the lengthy and winding path of health care reform to understand that something is seriously broken in the system. and just recently we saw another example when a single senator used the senate rules to play politics and ultimately prolong
passage of an unemployment bill that otherwise had wide bipartisan support. these examples underscore for me, for dozens of my colleagues and for the american people the time has come to address rules reform again. i intend to lead that effort at the beginning of the 112th congress by constitutional authority and because one legislature cannot bind its successors, the next senate will not be bound by rule 22. it can end the debate on a rules change by a simple majority and proceed to a vote on its rules. next january i will follow in the tradition of clinton anderson and offer a motion to adopt our rules. now, we don't have to make drastic changes, nor do i think a majority of senators want to. but we can modify the filibuster rule in a way that still
respects minority rights but prevents our current state of minority obstruction. we should also look at reforming other provisions that are being abused or misused, provisions like the use of anonymous holds to block legislation and nominations. i'm often asked how much support there is for my proposal. as you know, many senators have expressed a desire to reform or end the filibuster. senators harkin and bennett of colorado have both introduced resolutions to change the cloture requirement. all of the proposals under discussion have merit. but the reality is none stand a chance of passage without the constitutional option as the foundation for reform. each time the cloture requirement has been changed since its enactment in 1917, it
was the constitutional option that provided the impetus for the senate to act. but let me make clear my proposal is not the nuclear option despite the assertion by some. the nuclear option was a threat by republicans in 2005 to declare the filibuster rule unconstitutional in the middle of a congress. to me, that's like a baseball team that's losing in the fifth inning trying to make the opposition's home runs stop counting. i understand that through the 111th congress we're bound by the current rules, the ones we acquiesced to in 2009. we can't change course midstream and simply declare a rule unconstitutional because we don't like the way it's being used. the right way to make the changes for the senate is to exercise its responsibility and
examine the rules at the beginning of a new congress. that's what the constitution provides, and that's what members of past senates have called for. the nuclear option is just a continued manipulation of the rules. it's not a real solution. and finally, i hear the question of what happens if your party is in the minority? won't you want the filibuster the way it is? well, first of all, history tells us that shift is inevitable. but i think the real question is, to ask is this: shouldn't be minority's primary concern be the well being of our country, not the power of it party? and what will happen to this country if we fail to pass critical legislation? i have every intention of making a motion for the senate to adopt its rules next january regardless of the majority
party. as senator, i want to have the chance to legislate whether i'm in the majority or the minority and to advance the best ideas developed by great minds throughout our country. our current state of paralysis prevents that, and it's unacceptable. the constitutional option will help insure that the senate does not become a graveyard of good ideas. i'm very pleased to be here, and as i understand the schedule, jim, we're going to take a few questions and then move into the panel. so i'm happy to, happy to -- >> we have ant 0 minute -- about 20 minutes for q&a. >> i wanted to keep my remarks brief and try to do some q&a, and then we'll move into the panel, and all of us will have a crack at this too. so, jim, why don't you -- >> when you raise your hand, introduce yourself, and we'll bring a mic to you, and we'll go
that way. i'll be -- [inaudible] [laughter] >> hi, i'm david mccracken. how are you? [laughter] i am puzzled by the assertion that we have to wait to have the senate rules changed. there have been no senate rules adopted. they can be set at any time. and i'm puzzled by the assertion that this would be like changing the rules in the middle of a baseball game. this is not a game, this is governing the country. and it is ungovernable at present. it's more like saying these rules that say the other side gets two home runs for every one they hit are bad rules, and they should not be acquiesced to. the country can't afford more of this game playing.
so what i want to know is, can't the senate change its rules right now? >> well, i gave you a little bit of the basis of why i come to the conclusion that i have that changing in midstream is not a good idea. and the reason is those three vice presidents looked at exactly the issue that you're talking about. they looked at the issue because it was brought to them at the beginning of a congress, and it was brought to them at some points later, and they knew that there was going to be the critical thing pass. can you in the middle just throw out the rules and put in new rules? and here's, here's what they concluded, their analysis is they looked and they looked at the constitutional provision, they said at the beginning of a congress by a majority vote that you can do that after you move past the beginning, bayically
what you have done -- basically what you have done is acquiesce in the adoption of the rules from the previous i can't think. and -- congress. and so the crazy thing is, i mean, in some of these debates -- this may be interesting to you -- they extended the first day of the senate in this case sometimes to six weeks while they debated the issue that i'm talking about in order to try to come to a conclusion. but still the same construct in legal analysis is there, that on the first day, on the first day you can take up this issue, and it may be extended as i've said the first legislative day, and that is the appropriate time to do it. frustration about the current system. i came here to legislate.
i cannot believe the energy that went into the 2008 election, electing a president. the present but the huge majority. what he stood for was change. he wanted to change our health- care system. he wanted to tackle the e he wanted to tackle these economic issues. i mean, you know what the issues are out there. and here we have a situation where a rule is being abused and misused and we have basically, with the rules we have, given the minority the power over the will of the majority. and so i read this book before i was elected, this anderson autobiography. and i thought well, i should offer it in 2009.
and as i came in, we preside. the newer senators preside over the senate. and i kept asking the parliamentarians, you know, what's -- how is this -- how does this work with the adoption of the rules. well, two days later and then the opening day and they said, oh, what the rules are the standing rules of the senate. they go from one senate to the next. well, i didn't take that as an answer. i researched it. and the deeper and deeper i got, i realized and came back to the conclusion that the three vice presidents have come to, the time to do it, is at the beginning of a congress. there are many things we can do now is to try to break this logjam. and i think one of them happened yesterday -- or the day before when harry reid basically sent a warning out to mitch mcconnell
supporting the constitutional option and supporting changing the rules at the beginning of the next congress. to me he was saying to mitch and the opposition party, if you continue this, you may find yourself in a very different situation when we get at the beginning of the next congress. and so i hope with all of the things that are going on, that we will see some lessening of this opposition and this obstructionism that has really become part of the system. one more thing, if we had a chart here -- i was going to bring charts today and my staff said, oh, don't bring a bunch of charts. imagine a chart of filibusters that have been utilized -- motions for cloture filed. if you go back to the beginning of the filibuster, close to 100 years ago, you would see on this chart very, very small numbers.
and then you would see at the 110th congress, the last congress, you would see it come up to 112 clotures filed. so that 112th is more than all of the filibusters than the 1950s and 1960s. and we are on a path in the 111th congress to break the record for the 110th of 112. and it's probably going to happen. so this is a trend that we've got to deal with. and the way to deal with it is the constitutional option. yes, sir, all the way back there. >> i'm a retired army physician. i'm a great believer in our government of buy-in for the people. so my question where does the electorate fit into this issue? i have a feeling there's a lot
of anger but also an awful lot of ignorance. it's an extremely complex issue. but where can you get going if you don't have the support of the electorate behind you? >> well, the interesting thing the other day -- and i at first thought the premise of your question is, the public doesn't know much about this. the public has focused on this. and there's an energy behind this that is pretty amazing. why do i say that? in a recent "new york times" poll, a majority of the public wanted to do away with the filibuster. it identifies the frustration that the gentleman that spoke earlier talked about. the frustration that i have of saying, how can you allow the minority to prevent the majority from doing the will of the american people? that's where we are with that. i am trying to do everything i can to engage the american people. we're on facebook.
you know, normally on facebook you have fans of people. well, i've set up a facebook site called fixing senate rules. and you can sign up as a fan. we're trying to use every bit of media savvy we know to get the word out there. but i can tell you what i hear over and over again when i go home and this subject comes up is people say, why don't you make them stand up and filibuster these unpopular -- these popular things and show how unpopular they are. and the answer is, that's very tough. but we should be doing more of that. i mean, one of the reforms i'm looking at -- i haven't signed on any particular filibuster reform. i'm trying to lead the entire effort at rules reform with the constitutional option. utilizing the constitutional
option knowing that history -- every time there was a change in the rules, it came about by the constitutional option being the catalyst. and i think people are engaged. one other thing on reform. one of the things we might look at in filibuster reform is what i would call use it or lose it. if if you view the senate today during a filibuster, many of you would like at that screen on c-span2 and what will you see is quorum call. and nothing is going on. and so you flip on to something else. well, what's happening during that filibuster period is time being utilized -- the filibuster is going on but nobody is on the floor. and that's the case for a significant amount of time. what my use it or -- lose it or use it proposal would do would basically say if you're not
utilizing that time, then for every minute you don't use, a minute gets yielded back and we're working on something like that. but we're working -- the important thing is working on something to protect the minority rights. don't make the senate exactly like the house. but make it work so that when you have a majority, that you can get things done. and i think that's what the american people want and that's the frustration we feel out there. yeah, please, go ahead. she's bringing you the microphone. >> hi. my name is maggie reistein and my question is if you have to wait until january, don't you need to make it concrete for the rest -- for the rest of the electorate? don't you have to -- even though it is tough, don't you have to let some of these filibusters, let -- don't you need to show
that to the american people? and my second question is, that i had a discussion with norm ornstein a couple of months ago and he still seemed to think the two-thirds to change the senate rules wastill the -- you know, was still the top priority. how do you -- how do you answer his arguments? >> give me the second one again. let me just deal with your -- your first issue there, which is -- which is basically we're coming back again, aren't we, to what i was talking about. how do you make them stand up on what is a popular issue and show -- show the obstruction. show the face of obstruction rather than having the quorum call being the face of obstruction which people don't understand. we're going to do more of that. i think the poster child of doing more of that was
senator -- the senator from kentucky standing up on unemployment. and one senator -- it shows you the way the senate rules are structured. one senator is able to stop the entire show. but he paid a price for that. we had a number of senators come down to the floor and talk about what was happening with unemployment. what was talking -- what was happening with the highway trust fund and the fact that we had to stop projects and people were being laid off in these tough economic times. and it took us several days but he ended up folding. he ended up folding. and the result was, i think, that the aggressiveness that we showed on that front meant that they were going to have to think very hard. are we going to do that again? and so by being aggressive like that, i think we can make a
difference and try to change it a little bit. let me just get a second into the more arcane part of the way this rule is structured. to show you how difficult it is today. to actually require them to get up and vote. and to get up and talk about a particular issue. that we're considering a vote on. the first step that is required is to get a quorum before you can force that. well, a quorum is 51 senators. and they don't need to get the quorum. we need to get the quorum. the majority needs to get the quorum. so you have 51 senators -- we have 59 democrats now. that have to be on the floor or near to the floor to establish a quorum call to force that debate. and so they can strategically -- the opposition, in this case, the republicans, it can always
be reversed -- but the opposition designates four senators who will take a four-hour block of time and come down and speak. well, guess what? when they get up and speak about whatever the issue is -- let's pick unemployment, like senator -- the senator from kentucky did. and so they're talking about, well, this unemployment. we don't like the way this bill's structured. well, as soon as they notice that 51 senators are no longer on the floor, they can note the absence of a quorum. the senate goes into a quorum call, which is what you see on the screen, and then the clerk has to call the names of all the senators to determine when 51 are there. the quorum -- the 51 come back onto the floor. and then when a quorum is established you then go back into the debating session. but you only have one senator at a time to have stand up while 51 of us have to be there to meet the quorum call. so under the current rules we're
talking about a very time-intensive process. and as you will hear from these other panelists in the things that they would like -- reforms they would like to see done, the most precious thing in the senate is the time on the floor because that's the time that you need to put the healthcare proposal, the financial reform proposal -- all these proposals onto the floor in order to -- to move them along. and so by killing time, you stop that kind of thing. give me your second question there because the first had a lot of parts to it there. >> it's mainly how would you argue to norm ornstein who still seems to feel that in order to change the senate rules you need the two-thirds of the senate. >> oh, you need the two-thirds. well, i wish norm was here. perhaps one of our panelists will argue norm's position. my answer would be look at the constitution.
look at article 1, section 5. each house may determine the rules of its proceedings. there's nothing in that provision that says it requires a super majority. so you have that provision. on top of that this constitutional principle, which is embedded and then ruled upon by the supreme court -- one legislature cannot bind a subsequent legislature. the supreme court has ruled that over and over again. it's a standing parliamentary principle before our supreme court even existed. one legislature cannot bind a subsequent legislature. meaning, let's pick an example. let's say you passed a piece of legislation and said in the future you're going to need 75 votes in the senate in order to change this legislation, that would be held unconstitutional in a minute. what we have done with the senate filibuster rule is exactly the same thing. in the senate filibuster rule it
says that you need 67 votes to change the rules. if you follow that logic, you're caught in the box where norm ornstein is caught -- i want to free him, okay? norm, you don't have to be -- you don't have to be caught in the box, norm. you don't have to be caught in the box. we're going to free you. you can just go to the constitution and to the constitutional case law and constitutional principles and say, at the beginning of a congress now, as i said, the beginning of a senate, right at the beginning there, you have the authority to change the rules by a majority vote. you know, there are going to be two positions out here. if you go back and read the debate in 1917 and you read the debate in '59 and then '75 when the changes took place on cloture, there was always two sides. so there's room for norm but i
would suggest the better view and the better legal and constitutional view is that by a majority vote at the beginning of a congress you can change -- you can adopt new rules and change the rules or modify the rules. yes, sir. >> my name is jim conners and my question is, has vice president biden expressed an opinion on this? and going back a little further, when the republicans were in the majority, do you know whether vice president cheney offered an opinion? >> yeah. the answer is vice president biden has not expressed an opinion on this. on specifically the -- and i'm saying the question can the senate adopt rules at the beginning of a congress by a majority vote? he has not taken a position on that. vice president biden has said
when he was asked recently do you think the filibuster is being utilized in the way that it was historically designed? and he came out very strongly and said, this senate that i was first elected to -- i believe he was elected in 1972, is a completely different senate. and he pointed out that the filibuster has been abused. and up until very recently, it wasn't utilized in as many times, the 112 times i talked about in the last congress and we're going to break that record. he has not ruled. and the prudent thing for him, because he's going to be sitting in the chair, is to not answer that question because he's going to have to answer it on the advice of the parliamentarian. three other vice presidents, rockefeller, nixon, humphrey all answered the question. democrats/republicans. answered the question, yes, at
the beginning of a congress, the majority vote you can adopt rules. and that's -- that's the catalyst that we have here. is the constitutional option is the fundamental part of reform. so if you hear anybody stand up and say we want to put a new rule in on hold and make them more transparent, 48 hours, your name comes out and it has to be public and it has to be for a reason related to the individual, for example, if it's an nomination rather than a policy issue that has nothing to do with the individual. all of those reforms, the harkin where you lower the threshold on the filibuster, 60 for three days, 57 three days later. 54 and then down to 51 -- a declining threshold. none of those ideas can be put
in place unless the constitutional option is utilized at the very beginning of a session. and so if you're interested in this reform, the key is studying and knowing this constitutional option and advocating for whatever you believe in the rules. jim is standing here with the hook. i'm sure all of you that have questions, you can throw them at us after we have panel presentation here. >> we're going to switch into the panel right now. and after the statements from thomas scott and the senator, we'll go into q & a again so let's come forward for the panel, please. and let's give some applause to the senator. [applause]
>> well, it's my pleasure to introduce this panel and two colleagues that have written about this extensively. and first scott to my left has written a statement. and some of you have picked up the statement. those of you who are viewing on c-span, it's on the center for american progress website. he's a senior fellow at the center for american progress. he's been here since 2004. he was chief of staff to representative dave obi. he spent 31 years in the service of congress. clerk and staff director of the house appropriations committee. executive director of the house democratic study group and had other positions. he writes about governance, appropriations, budgeting. he writes also about the economy. and in the context of governance, he's expressed himself in writing and speaking on the filibuster and other reforms.
tom mann to my immediate right is the chair and senior fellow of governance studies at brookings. he was director of their government studies division for many years, 15 years. he's written a book that's relevant to this with norm ornstein -- i guess norm came out of his box in order to help you with his book and it's called "the broken branch: how congress is failing america and how to get it on track," oxford university press. he's written almost a dozen other books. several are relevant to the functioning of congress, the permanent campaign and its future. party lines competition partisanship and congressional redistricting. some think that redistricting has had an effect especially on the house of representatives. and the nature of representation there. both will have short statements. there will be a response from senator udall and myself and
then we'll open it up to the -- to the audience for questions and comments. i know several of you -- i can see your faces are experts on this topic. and i will call on a couple of you that i know are experts. walter is hiding in the back. he has the best book on procedures in congress. so, walter, prepared to ask a question. we'll get to you later. let's go to scott lily? >> thank you. for only about four of the 31 years i worked on the hill did -- was i on a senate payroll. but it was allen drewy's depiction on the senate and advising consent that i read as a teenager that really got me interested in politics and service generally. in college i read the u.s. senators and their world which i still think is one of the great books on american government.
and that further raised my esteem for the body. i do not come at this as an embittered half staffer who is angry at the guys on the other side of the hill. i have great regard. the senate should not be the house. it should be the force. it should be a force for more measured consideration of the events and policies. and i've been in situations more than a few times during my career in congress write saw the senate make a very valuable contribution by slowing down the pace of which we were -- we were moving on issues that had not been as carefully thought through as they should have been. but having said that, i think -- i think there are some very serious issues with respect to the way the senate works today. and i think that anybody that is governed by a set of rules at
one period of time has to review those rules as the workload on the institution changes. as the nature of culture and problems facing the country and the type of individuals who are members of the institution change. and i don't think that that has happened as frequently as it should. and it's one of the reasons why i think that we should take senator udall's advice very carefully. the thing that i think is overlooked in much of the current discussion about the senate is that while we may have strong views on issues like healthcare and we may be very angry that the deliberation is being slowed or conclusions that we think the country has arrived at should be ratified by the legislative body and not blocked by minority, those are all-important things.
i feel those very strongly myself. but i also think that those are going to be quite difficult to change. what we do not view as carefully as i think we should is the fact that the senate is just broken in a very standard workload diagnosis. and i want to go through three areas where i think that we can see that. first is the authorization process. i think that's kind of an arcane term but probably most americans don't know that we create programs all across the government through passing legislation that establishes the structure of those programs. sets spending levels but does not actually provide spending for those programs. this year according to the congressional budget office, 50%
of all spending outside of the defense department, 50% of all appropriations, were for programs that are no longer authorized. the authorizations have expired. cbo identified 250 authorizations that have expired and money was appropriated for them even though there was no authorization. the leaders of the senate were basically put in a situation where you either had to terminate major portions of the department of justice or other critical activities or fund them in the absence of an authorization. the reason that we don't have the authorizations is the chairman of the authorizing committees in the senate are 18 committees that do nothing but work on establishing the structure of government programs. the chairman of those committees cannot get the floor time from the leadership. the leadership does not have the floor time to give because so
much time is consumed with appointments, appropriation bills, and various other business including the lengthy quorum calls that you see on c-span all the time. i think not having authorizations is much more a profound problem than it might seem at first. well, you say the appropriation committee goes ahead and funds it so what's the problem. every government program needs to look at it with a fresh eye every few years. government agencies need to come before the house and senate and explain what they're doing and give the authorizing committees an opportunity to probe and find out if this is a place that we can make savings and modernize and create efficiencies. are there programs that can be combined? are there authorities that need in the bureaucracies to make
things better. those are things that are not being asked on a routine basis and the authorization process is what makes that happen. and until we find a way to get the senate to go back to a system where it can adopt authorizations, then it's very difficult to motivate authorizing committees in the house to move legislation that they know will die in the senate, which has been what has happened repeatedly. the second area -- and i think this is an area that really turns the whole notion that the filibuster is being used to give more measured deliberation is in the area of appropriations. this year of the 12 appropriation bills, nine actually were considered in the senate. three including the biggest of all the domestic appropriation bills, the labor hhs bill, was not considered in the senate. it was reported by the appropriations committee in the
senate. but when senator reid decided that there simply was not the floor time to take up those bills, the committee-reported bill was taken to conference with the house and conferenced as though the senate had actually voted on it. it was then wrapped into a conference and voted by the senate and no amendments were offered to change the funding of any of the programs contained. they simply had an up or down vote on whether or not to continue the department of health and human services labor and education. or not continuing it. as bad as that sounds, 3 of the 12 bills actually never being considered in the senate floor or subject to amendment -- that's better than we've done most years for the last decade. on average, over the last
decade, we have had five bills that never went to the senate floor but were enacted circumventing the floor because there was not time to get there. i think that's -- that is necessary to get the work done. to get the government functioning. but it is about as big of abuse of process. and the rights of the 70 senators who do not serve on the appropriations committee, as you can imagine. further, this process means that the bills that do come up cannot be considered in a timely way. the past year the house passed four bills in june. four of the 12 appropriation bills in june. the other 8 in july. the senate passed, i believe, two bills in july and were passing bills off the senate floor through september, october, november, and december.
so what that meant was that the final bill was not enacted until late december. we were almost 25% through the fiscal year that we were -- we were providing agencies with money to operate in. what that meant was that, one, the agencies had to go on a restricted budget between the time that the fiscal year began and the time that the appropriation was actually put in place. that meant that agencies that have regulatory responsibilities had to cut back the travel of the people that performed those functions. it meant that the program officers, the grant administrators and government agencies had nine months to do 12 months work. again, that may sound like a pretty lousy record, it's better than what we've done most years in the past. several years we have given agencies only six months to spend 12 months worth of money. that means they have to restrict their contracting process. you can't go through the full,
free open bidding contract and do it in six months' time. you can't get it published in the federal registry. you can't take the awards and have them reviewed. so it means that you really have a prescription of waste, fraud and abuse resulting from the legislative calendar. now, the final area that i think we have a huge problem is what i call the hollowing out of the senior executives in the government. right now we have 228 empty positions in the federal government for appointments that are pending before the united states senate. and there are -- there are a number of those -- i think there are 12 of those who have been pending for more than 10 months. they can't get a vote up or down. i think it would be much better for the administration, the
government and the country if the ones that there are serious objections would be brought up and voted down so another appointee could be moved but we sit in gridlock with very important positions unfilled. in recent months or in the last month, we've had a number of people that were confirmed. for instance, the undersecretary for science and technology at the department of homeland security was pending for over six months when her nomination came to the floor and passed on a voice vote. we had for 10 months, we've had a vacancy in the administrator of the general service administration which is a key position in terms of moving this administration's agenda on contract form which should not be a partisan issue. nonetheless, she was held up for 10 months and then confirmed with 96 positive votes.
so there's a great deal of this that really does not have to do with the controversial nature of the appointment. it has to do with individual senators using their ability to put a stick in the spokes in order to get parochial concessions about things that may be totally unrelated to that nominee. the poster child for this activity has been senator shelby in recent months who up until about three weeks ago had a hold on every single one of the administration's appointees hoping that he would somehow influence their decision over buying an air force tanker plane that would be made in his district. and i think, you know, that's sort of funny, sort of aggravating but in the end you have literally important positions in the government that are unfilled. the career people that are
working there cannot get the information from the higher-ups in the executive branch because you have a break in the link of communication with the policy people and the implementers in the government. and as a result, you've got more waste and fraud and abuse and ineffective government. and that's a cost that we pay for not the big major issues but just the minor day-to-day functioning of the senate in ways that do not make sense. that put the rights and prerogatives of individual senators above the functioning of the institution and above the well-being of the government. and i think that needs to change. i had two in this little paper -- i've got two suggestions with respect to to that that i don't think do any great damage to the deliberative nature of this senate. one is to simply put a
limitation on how long it takes to consider an appropriation bill. i don't really think most of those bills should take more than two days, three days at the outside. i would be willing to associate with that a guarantee that every senator gets offered one amendment and debate it for an hour. he could have as many items in his amendment as he wanted. but that would be far more input and protection of minority rights than we have today where we don't even take many of the bills to the senate floor. and i think that's -- that's a very reasonable compromise. another thing that i think absolutely has to be done is of some serious limitation on how long administrative appointees can be held up before a vote is taken on that. there are a lot of different ways to do it. i'm open to any of them. but i think some action has to be taken. >> thank you very much, scott. tom, i'm getting depressed.
i hope that you've got some answers for some of these problems. >> of course. >> we've talked about back-door authorizations. the regular process for appropriations. holds on confirmations. i listed about 12 problems at the beginning. scott has a couple of recommendations. so when you come up with the problems, i like the spirit of coming up with solutions, too. >> got it. hold on. take notes, john. >> i am. >> listen, i'm delighted to be here at the center for american progress. and to share this table with senator udall. he gave, i thought, a really lucid discussion and case for the fact that the senate is not a mere way from its forces. that its force is created by inadvertent actions like leaving
out the previous question motion in 1806 and the rules. and that there is a sort of constitutionally grounded case for a new senate, which he would classify as one whose membership has been changed, not completely re-elected to determine its own rules. and i think that really advances the argument very far. and scott lilly has taken our eyes away from the drama and melodrama on health reform and these other major partisan ideological battles and pointed to the problematics and the functioning of one of our legislative chambers that gets too little attention but go to the root of problems today.
let me just say as i'm delighted with all of the attention being given to this. you know, there is this sense, a feel that all of government is dysfunctional. in fact, once the pundits got a hold of it, i knew it had to be wrong. beware of conventional wisdom on all of this. it's true that much of the problem of government today is associated with the senate. we have seen over recent decades an extraordinary increase in the percentage of legislation and nominations that have been subject to delay-related problems. from less than 10% to more than 80%, that's a change. this isn't just like the old days. it's a profound change.
we have seen the ruinization of the filibuster that there is a basic acceptance that there is a 60-vote threshold for passing anything or doing anything in the senate. now, that's not written into the rules. there is no democratic legislature i'm aware of that has a super-majority requirement for the routine actions of the body. there are sections, as senator udall pointed out, in the constitution but not for the routine -- now, obviously that that ruinization of the filibuster has partisan routes and has everything to the character of the senate. we have a promiscuous use of holes. listen, it's been around for a
long time and we know all about the need because of increased business and -- before the senate and the use of holes for the two-track system. but, you know, we've had people use holes or really objections to unanimous consent agreements. howard metsenbaum and parked himself on the senate and when they thought nefarious was going on and no one knew what was in it demanded some transparency and that was -- that was a very healthy thing. in any case, this has had consequences. as scott said for appropriation bills not getting passed, for the demise of authorizations of the problems with nominations, with hundreds of house-passed measures being cued up in the senate.
the case for the filibuster is that it turns out of it leads the quote reasonable bipartisan negotiations that produces more moderate, more deliberative and better legislation. and yet the evidence for that is sorely lacking in contemporary times. okay, jim, here it is. what to do? number one, you could abolish the senate. how about a nebraska unicameral. it's very hard to abolish the senate given its place in the constitution. even the changes that's representational base so i'll strike that one off the list. the second, you could change the party system. the ideologically polarized parties today make -- make the filibuster more problematic than it's been in the past. and the sort of parliamentary-like parties intersecting with a
congressional set of rules creates particular problematics. now, if i knew how to change the party system, i'd go ahead and do it. or if i could tell you how to do it, it's probably more lopsided majorities for one party of the other would probably produce more cross-party coalitions, but it's hard to do much about that. okay. next possibility, you could try to discredit filibusters and holes. politically discredit them. use the power of shame. that's what the senator and some of his colleagues were up to with senator bunning, with senator shelby. you could imagine presidents being engaged in this. the one thing that tom made perfectly clear, you can't do, well, just go back to the old filibusters. if you try to wait them out and force actual filibusters, the
burden is on the majority, not on the minority that's filibustering. and it will -- it will -- it simply won't work. but shame gets you something. and i think of a more aggressive use of an effort to discredit the filibuster, which is happening now is both useful in its own sense but also as a predicate to moving toward more systemic change. okay. fourth, use existing alternatives to dilatory tactics. and here exhibit number one is, of course, reconciliation. right now in the healthcare debate republicans are crying foul but i think any objective, fair-minded assessment of the
budget and empowerment control act of the senate rules, of the history of reconciliation demonstrates that this particular use, which is a new twist but much more modest than previous uses is not enact the whole health reform. versions have passed the house and the senate and the latter with the 60 votes for cloture. but to have the house adopt senate bill and then to approve under the reconciliation project process instead of changes, amendments that would be germane under reconciliation rules. sometimes we have special trade authority which creates fast track procedures. occasionally it's written into the law, the health reform law
has at one time or another -- bills have looked for requiring up or down vote on recommendations regarding medicare practices. so it's perfectly legitimate. the senate has looked for these alternatives in the past. they can do so again. the final opportunity is to change the rules. there we need to talk about the substance of changes as well as the politics of it. okay, quickly. you could carve out additional exceptions to unlimited debates. scott has already suggested that. extend the reconciliation process to appropriation bills and in effect have time limits. on debate, time for considering these matters. you could set up fast track procedures for handling nominations.
and you might do it different for executive nominations and judicial nominations. you might treat district court different from appellate. circuit courts from the supreme court. but there's nothing keeping the senate from setting up such procedures. okay. that's carve out exceptions. the second is to limit time-consuming requirements presently associated with invoking cloture. for example, you can filibuster at various stages of the process now. even on the motion to proceed of getting something to the floor, on adopting the underlying measure on going to conference. on approving a conference report. well, you could -- you could set
up authority for the majority leader to have nondebatable motions both to proceed to consider a matter on the agenda, most leaders have a capacity to sort of bring measures to the floor. still preserving the opportunity to filibuster the measure itself. but that alone would make -- you could do the same thing on a motion to proceed to conference. again, not a time at which you might do that. you could do other changes like a quicker ripening of the cloture motion and just looking at the particular ways in which you can extend a filibuster on a bill to well over two weeks before it even goes to conference. and you could get that down in certain ways. okay. third is to reduce the number of votes to invoke cloture. you could go from the present 60
to three-fifths of those voting. that puts a little more burden on those who would filibuster because right now you don't need any votes against the cloture motion. all that matters is do you get 64. so present and voting would be a big change. and you could have as senator udall reported of senator harkin's proposal as a sliding scale. there are various things you could do with that. finally, here's another sort of radical proposal. you could readopt the previous question motion and include it in the rules of the senate and instruct the parliamentarian to say which other items in senate rules and precedence must be struck to be consistent with that but, of course, that would very quickly potentially turn
the senate and the house and it's probably a too radical change. okay. final point is, of course, the procedure and politics of filibuster reform. is it required as someone said -- norm argued that you have to have two-thirds. that is is in the rules of the senate. no one disputes that but there is a contrary argument that no new legislative body can be bound by its predecessors. and i think -- i think -- i think a majority could do it, okay? a majority could pull it off at the beginning of the congress. but is there a majority in favor of doing much? that's really the question. because it's partly partisan. that is the current minority will see it as an outrage and a way to sort of weaken their power. but on the other hand, they are thinking ahead, gee, democrats
have many more seats up in 2012. we might be back in the majority. that might be appealing. and democrats may say, we might be back in the minority and we may not want to do it. so i don't think there's a clear partisan case for producing it. finally, it's the individuals. what will individual senators give up because as senator udall made clear, this is the basis of some individual power within the institution. and they're really reluctant to do it. but this is where we really have a breakdown in the system because when the norms governing the use of this power by individuals give way to its promiscuous use, the body breaks down. so i think politics are really tough. but i think there are things that could be done. and i think there is a
constitutionally defensible root to the senate acting at the beginning of -- of a new session following an election. >> thank you very much. let's go to senator udall, please. >> thank you very much. and very insightful comments. let me just step back a little bit and look at the big picture here with all of these suggestions that are out there. i'd also like to say that, you know, many of the things that we're talking about in terms of the -- the house -- if you look at the house of representatives, there are things broken over there, too. the attention right now is on the senate. but many of the things that have been mentioned here we have the same problem. and so we have the bigger issue as a country when you look at our legislature, when you look at the conference, are we capable of governing? we had this election i talked about. high expectations, mandate for change.
and here we've seen it kind of all grind to a halt in the congress. and the senate playing a significant role in that. and that worries me a lot. and so i think all of us as senators need to look and as has been suggested here and i think i've said this before, to be willing to give up a little bit for the good of all so that we can move along and get things done. one of the areas that troubles me and i think it's been mentioned by tom before in his book is committee structure. it used to be -- and now i'm going to try to follow jim on your suggestion, let's get solutions. here's the solution from history. it used to be on committee structure that the reason the committees work so well. you wonder when you have a big body, how do you get expertise? well, the idea you go on one
committee that's your major committee and you really learn things. you specialize and that's the reason why you're given deference by all of the other senators and representatives because you spend all of your time in terms of studying the issues. my dad told me a story about how archbald cox came down in the 1950s and taught six or seven members of the house education and labor committee labor law. if you ever find a committee nowadays, fellows, that they're studying issues like that, let me know what it is. i want to get on it. because when you get six or seven senators spending three and four hours at a time studying an issue, learning an issue, focusing on a committee, that's when you start producing very, very good legislation. i asked several of these scholars, what was the last time we did committee reform in the senate? 1975. about the last time we had -- yeah, 1975, '76 so that was the last time we had filibuster
reform also was in 1975. so the institution -- we need to break through. the last thing i want to say is it kind of ties it all together. i remember in the house getting very frustrated with the schedule and the way -- the house does get the appropriations bills out. scott, you're right but it's a brutal process and it's very quick. why don't we get more time? and what an old time parliamentarian told me, he said change the fundraising. and what he meant was, is these extensive numbers of hours that are spent -- it's just been highlighted with this congressman that just resigned where he went on television and talked about it. i think he said five to seven hours a day. others have said that's high or low. it depends how tough your race is. but most people think that we were sent here to do the job of
the american people, spend the time legislating. if they knew the numbers of hours that we spent on a phone dialing for dollars or over in a fundraising meeting or whatever it is compared to what we're doing on the other side, i think they would say the balance is tipped the wrong way. and so the solution there is meaningful campaign finance reform. we need to try to get -- and by the way we're headed in the opposite direction. the supreme court opinion, we're opening the floodgates now for corporations to put in money. we're going to try to take care of that by the end of the year. in the senate if we don't have a filibuster. but this is a huge, huge issue. so that's a couple of comments. and i'm sure the audience has others here. >> thank you, senator. i'd like to ask a couple of questions, first of you and the other panelists.
the lack of civility in commenting of the senate for years is not that way on some committees. some committees are pretty good. do the members talk about the anger of the american public of the decline of confidence and trust of congress linked to these problems of the filibuster and other things? and do they worry about the lack of civility? >> yes. and senators talk about it. we talk about it on an informal basis. it's a regular part of the discussion. the part that's really broken in washington, i think, is that if you go back 30 years, that the oil that kept everything going was the common. it was having time to spend time with each other. i'm sure scott lilly can tell many stories about how the
appropriations committee or other committees would spend time with each other. there are stories about saturday night, you know, in the '50s and '60s worked in the weekend. there would be a potluck saturday night and democrats and republicans would all show up with their families and have -- have a dinner together. the reason -- and that was the oil that kept things going. you knew each other. you were very reluctant to step on to the floor of the house of representatives and really nail somebody personally if you had had dinner with them the night before and met the spouse and also knew the children. the frustration, i think, is getting to know individuals in such -- in such a way that you get a relationship where you
have a bond and you can trust each other and again, that you can move forward with things. and so that's very much missing. and we're trying -- the younger members are trying to find ways, you know, where we can get together and talk with each other on a formal basis and try to do it in a bipartisan way. but it's very, very difficult with the structure and the demands and the fundraising and so we need major reform. >> well, let me ask one more question, senator, and it's related to the committee system. are the junior members concerned about the committee system. we have over 200 committees, subcommittees. you have some would argue you did. you had too many committee assignments. too many committees in the senate? is there an effort? is there a working group in the senate that's pushing this? the last time it was done it was 1976. and no one has really looked at it seriously in the senate since then. the house has looked at it four times and they've had limited success then. >> that's right.
and the real issue is the way committees are treated today is if you get on a committee, it's a feather in your cap. with the numbers of the committees, it's just so hard to spend the time and to get the specialization. and so there is concern. the senator from delaware that was appointed after joe biden left, senator ted kauffman who was a chief of staff here for 30 years. that's one of his passions. he and i talk about it. we're trying to talk how to build up the fires a little bit to get something going there. but i think if you -- if you ask a question to senators or house members and had them answer it truthfully, are you serving on too many committees and have you become in one area really specialized so that you have something to offer to everybody else?
have something to contribute to a better piece of legislation, i think most of them would truthfully answer, i'm spread too thin. and that's a problem. >> are you willing to give up some of your assignments? >> i think as scott said and i think some of you have said, if you look at the whole structure, whether it's appropriations, authorizations, committee structure -- if all of us were willing as a group to give up a little bit, we could have a much better working institution. and i'm willing to do that with all of the others. and that's what part of the discussion is. when we -- you know, i came here to talk about the constitutional option. and people have questioned, you know, why are you trying to do this? well, the real core here is to spend -- the reason i chose january of the second year is i thought we would need at least a year to pull everybody together. to have the discussion.
to get working groups going. we have going right now -- senator durbin has a working group. we're going to hold hearings for -- in the rules committee. chairman schumer is going to have historical hearings on the filibuster and the state of the filibuster. the freshmen and sophomore class the 2006/2008 classes are working together on reform and have small working groups going. and we're trying to get together for lunch on a regular basis. so there's a lot happening that i think is going to bear fruit. >> if your constitutional option works, do you see some effort at that point to suggest that a committee be created to look at the committee system and some of the other procedural problems in the senate? >> my guess in the senate is a lot of that will be done in the rules committee. that's the responsibility of the rules committee. i'm on the rules committee.
much of the leadership of the senate is on the rules committee. and so i hope when we do these hearings on the filibuster is look a little more broadly at the ideas that have been raised today and things that i talked about today to see what kind of reform we can do. i imagine at some point it may get to the leadership saying well, we're going to have a working group on this. there are already informal working groups we've talked about. >> the final question for the three of you. some people feel the congressional budget process is really broken. it gets changed every year in terms of the procedures. we did not have paygo, pay as you go, as part of the appropriations process that's linked to the budget process. are there problems are the budget process and if so, what should we do?
>> you know, i often use a grove showing of the increase and the decrease of the public debt which is a percentage of the gdp which is a correct way to look at it. at the end of the world war ii we had a public debt that was 109% of gdp which was a dangerously high debt. but over a period of 30 years, they were able to bring that down to 26%, which is -- which is very reasonable. we're at 50% headed toward 65% right now. but the interesting part in terms of the public debt is the percentage of gdp was in 1974 when we passed the budget act. and i don't think that there's -- i think there is some connection between -- i think that the budget act which was supposed to clarify budget
>> so you do away with the budget process? >> no, i don't think you can do away with it entirely, but you certainly could restrict the amount of time that is consumed doing it. and bring it down to establishing that one number in an expeditious manner. >> i heard in 1974 congressman to be expressed similar views of why do we need at that point. he wasn't supporting it at the time. were you working for him in 1974? >> no. >> okay. , lex. >> you know, i think most budget process discussions are ways now of avoiding the real problems that we confront. and because we have such a difficult time dealing with them, we imagine if we just get the process right, either within
congress or, say we have to go outside congress, or to have something beyond the regular order, be it a bipartisan commission to deal with the problems. i'm just skeptical that it's worth investing a lot of energy and process changes, and i think what's needed and our leaders ought to be doing is trying to educate the public to confront the nature of the problems we have. and have had an immediate short-term need for big deficits, both created by sort of financial stabilization and stimulus programs, but also as a consequence of the worst recession since the 1930s. and there's nothing wrong with
them existing in the short term. in fact, it would be nice if we could get people in congress to speak to that in a clear fashion. but that, in both the medium and long-term, we've got huge imbalances that will require steps to be taken to certainly slow the rate of health care cost increases. and to create additional revenues. instead, we sort of patrol at the margins. and having big fights over how much money we're going to save from earmark reform, and talk about what paygo should apply to, this and that. i mean, i think the problem now is one of party and ideology. and that's the problem more generally. a party and ideology top institutional responsibility and straight talk, and i put all of
my energies into the latter to try to overcome the former. >> senator? >> i think the american public would be shocked to know that most of our executive agencies don't have, at the beginning of the year, a budget that they know that they can spend. that is the reality of what's been described here, and scott's proposal, which gives limited time on the floor for appropriations with limited amendments, for heavens sake, get it done. what we have right now is a situation where these appropriations bills don't get finished, are rolled into an omnibus. it usually takes place anywhere from three months to six months later, and so you have, as has been pointed out here, executive agencies who do not have the
ability to know what they are going to spin. talk about doing something about waste, fraud, and abuse. you could really do something about waste, fraud, and abuse, if, in fact, you focused on just getting the budget done every year, which is our major responsibility, is getting the budget done for the governments of the government works for the american people. >> thank you. let's go to the audience. ira mentioned walter. walter, i see you back there. he is a national treasure when it comes to understanding the procedures and rules of the house and senate. he has written the best book on the topic. he's a senior analyst, scholar at the crs in. and 427 years has been associate with our senate as a scholar also. >> and gym gets 10 percent of his royalties. >> and tom is my agent. >> walter, do you have a question?
>> using nokia but let's do it anyway. >> if you're insomniac, by all means, but am way, maybe a questionable and into it. and in terms of the constitutional option, i was just wondering whether or not what senator byrd might think of that. i know that he will probably view the current situation as really sort of and abuse, but he's also on the record many, many times about how the senate is really a super majority are in institution. and that the houses of a majoritarian institution. and so he would, i would assume, be reluctant to go along with any really fundamental change. because, really big changes could potentially make the
senate more like the house. if the principle is established, then it is certainly a legitimate one as senator udall has pointed out. at the start of every new congress, you can change the rules of the senate, then perhaps over time the senate would become more like a house where every new congress was, we all know, new rules are adopted in the house of representatives. and how are they adopted? they are adopted by majority vote of the party in charge. and so this might lead to a circumstance where you would have constant changes in the rulebook of the house, triggered by the majority party, who is upset with what the minority party is doing. and more specifically i guess, where are my -- tom alluded to this. and so there have been consensus in the past about establishing
cloture on or limiting the amount of time for the motion to proceed. you know, certainly getting the conference committee is just an enormous task these days. you just can't do it because of the threat of the filibuster, given you have to you have to have agreement on sort of a three-part, insists on your amendment, requested authorized the officer. each one of those is filibuster will. if you limit those, there's an annual number of places to filibuster on the motion to instruct or so i mean, this is a huge issue. i'm not saying it's not to be done. i think there are certainly lots and lots of room for improvement. and even if you curtail the ability of senators to use the filibuster, extend the debate, there's lots of other avenues. you can filibuster by offering an amendment the sides of the manhattan telephone directory. and as we saw when senator mcconnell asked that senator reid majority manager's amendment be read, i think that took seven or eight hours.
so you have a clue to the reading for you. and urge that clerk to read slowly because every word is important. so i mean, those are just a few of the off-the-cuff comments, and i don't want to filibuster myself. but with that said. >> yes. you know, when we talk about the house and say we don't want the senate to become like the house, i think we first of all need to remember that in the constitution we designed the senate so that it would not be like the house and a fundamental way. and that will always be there unless we make a constitutional change. and that is the two-thirds of the senators are always a fairly long ways from an election. you know, at this particular point in time, i am five years from an election. two-thirds of the senators are in my situation.
so when we talk about the senate being a cooling force, when we talk about the senate slowing down things and being deliberative, but still doing something, it's the structure of a third elected two years, a third elected two years, and third elected two years, that i think builds in that principle. that's the first thing that i think is important, and the house has come if you look at the house rules, the house hasn't every time there's a partisan change, dramatically change the rules. it's usually when there is a reform movement there's a change, but the house rules are tweaked a little bit, but they are the same rules. so there isn't a pattern necessary over there. the final thing i would say about your question about senator byrd, and i know there are going to the other comments here, but just on the constitutional principle of one
legislature binding a success, success or legislature, he is quoted as saying we should not be ruled by the dead hand of the past. and i think that that's a very appropriate comment, in light of what we're trying to do in the constitutional option. >> a couple of comments. >> a simple footnote and underscore what senator udall said. one of the quote, one of my favorites, walter, when senator byrd was majority leader in 1979 trying to push a change in the post-cloture debate come a post-cloture filibuster matter, said it is my belief which has been supported by rulings of vice presidents of both parties and by both of the senate, in essence of holding the right and power of a majority of the
senate to change the rules of the senate the beginning of a new congress. now, as you know, that ended up being a threat, it produced a change, and then they kind of removed any hint of precedent is there. but, in fact, is senator byrd has stated that i also think it's interesting to note that there haven't been the radical changes in house rules with the change of party control. and i have a feeling you will, as long as you don't sort of completely eliminate the possibility of some extended debate, that there are enough structural features and incentives to provide continuity and those in the senate as well. >> scott? >> the point was well made. >> let's go to another question from the audience. comment, question, please. let's go over here to the left, first.
>> jack liebowitz. in talking about the finance, is it possible to get public financing of all senators and congressman? >> let's go to the senator first. >> and that's what i was suggesting earlier. if you have a system, dave and i worked in the house of representatives on a proposal that i'm considering right now in the senate. and he was such a student of the process, and what he determined, he said let's look. and we have these discussion. he said let's look at a system where you try to maximize the time being spent on legislation. and minimize the time in fundraising. and so what you did is take out
all of the private money, the corporate money, all of it, and ban it. that means you're taking head-on buckley v. valeo, which i think you have to take that head-on if you're straight about campaign-finance reform. buckley v. valeo, i believe, was wrongly decided that so you've got to take that head-on. and so you pass a piece of legislation, but the one last oh, i think, is to pass a structure where you take all the money out. you have individuals contribute money to a clean campaign fund. you know, what if you at the beginning of every year for four months, allow the fec to advertise and say citizens of america, you have a chance to get all the special interest money out. contribute money to a clean campaign fund. and you fill up that fund and distribute it in general elections based on a form that. we would have much more competitive elections.
we would return to elections being the marketplace of ideas with citizens taking what they thought were the best ideas, rather than whoever has the biggest checkbook, whoever has the biggest checkbook. so you will need to push for it. the american people need to push for this. it's a ways off right now, but i believe that that helps everything we're talking about up here. i want to underscore, you want your legislators doing less fund-raising, more time on legislating. and they're going to fulfill the wishes of the american people if you do that. >> do you think is citizens united decision is hoping that movement to have more reform? >> yes, i do. gym, i do. i think citizens united has really crystallize the argument for everyone. because for 100 years, we basically had no corporate money
in the process. you allowed voluntary packs which corporations -- which grew since the big reforms in the 1970s. but we were limiting. now the floodgates are open. the expectation -- the other day i was astounded at our state level, our state races, when people run in his small state like new mexico, for a statewide office your spent a couple hundred thousand dollars. people are now expecting the floodgates of corporate money to come in, and millions of dollars be spent in those races by a variety of organizations. so as people learn and know about that, i think it will give us an impetus to try to tackle campaign-finance reform, regarding that decision. we are on the strongest footing, constitutionally, the way the cases are now for disclosure and transparency. that's -- we can do that now. and so you can say the ceo has
to be on television, and you can disclose all the donors. but otherwise, if you want the big reform the gentleman asked about, you're going to have to take on buckley v. valeo. you will have to set up a system, and if they declare it unconstitutional you're going to have to amend the constitution to allow the kind of regulation and legislate that the congress needs to do in this area. and senator dodd and i are on a constitutional amendment right now that i think forces that issue. >> he has to be campaign-finance for years. he's been involved in the reform. that's what it's working so well right now, tom. >> have a we done a brilliant job? >> listen, this panel has been so agreeable. it's time we had a little disagreement, and i'm going to disagree with the senator on this. i don't think banning all private money in elections and campaigns would be a good thing. i also don't think it's a
constitutionally possible. it would take a constitutional amendment, and it would, in my view, and it would seem very much to go against sort of free speech guarantee of the first amendment. i also just think having citizens put a little skin in the game, is something useful. some market test for candidates to raise money is a good thing. dating individual, my son got really excited this last time, and he makes very little money, but he made contributions on the internet to an unnamed presidential candidate. several times. and had a sense of engagement and participation. also, i think there's nothing attractive for most citizens to
give to a fund that could go to one of the politicians they most despise, whose ideological views they detest. they want to give to people that they admire, as individuals, as members of parties, as espousing of public philosophy. therefore, i am for public funding, but i think we ought to be thinking of multiple public matches for small donations that increase the incentives of members of congress, who now could a very small percentage of their funny farm small donations, to actually cultivate and to after small donors to give them four or five to one matches, up to a lemon limit, not an event a grant after they qualify by giving a few names on petitions. that's too vulnerable to charges of welfare for politicians.
but let the individual citizen and donor be empowered. let that contribution be magnified, change the incentives of politicians. you're never going to eliminate the role of wealthy people in politics. if they're prepared to act independently, they can do a lot. yes, i'm all for the transparency disclosure, response of citizens united, and i thought it was a lousy, awful decision. but in general, i think full public financing as an idea has come and gone, just in terms of pure constitutional political feasibility. and we are to get behind a plan to empower the small donors throh m >> let's go to another question. let's go to sarah who is head advocate lobbyist for common cause. she doesn't call herself a
lobbyist, but you have a question, so? >> first of all, i'm just delighted with all the conversation with this panel. congratulations to all of you. , causes working on all these issues and probably public financing, just like the system you're talking about, mr. mann, is one of our big issues. but kind of back to the filibuster. i agree that there is much to be said, that rules in the senate can be changed by majority vote. just like it takes majority vote on final passage of bills to pass them. the problem is getting to the final passage. and my fear is that in the beginning of next year, when you move to change the rules of the senate, that that can be filibustered. that's what my fear is. and maybe you can comment on that. >> this is, i think i'm back to the norm ornstein the box again, and if i understand your question, which is true in the
filibuster rule that it's specifically says that 67 votes are required to change the rule. and if you just go by the confines of the rule, you basically are stuck there. but as has been pointed out, more has been pointed out and just in my opening comments, the senate began, if you go all the way back to the history of the early senate from the beginning to 1806, there was a motion to order the previous question. for those of you who are real students of the house, today you see that. every time you move to a vote on the final bill, there's a vote before that on the motion to order the previous question. it is normally a partyline vote. it is considered a procedural vote, but it cuts off debate, and then you move. the senate have that in place
and killed 1806 eric and then it apparently was dropped aside because it wasn't used. it wasn't used. there was so much respect, that if you're a senator, you are allowed to stand up and talk for how long you wanted to talk, and then the rest of the body wind and legislative. now we've got ourselves in a situation where a minority can determine what the majority will do. i mean, we have really given them the power to obstruct and prevent us from doing anything. and so with the constitutional option is, is let's look over the next 10 months at how we can change the rules to allow the majority will to go forward, that also protect minority rights. and it's grounded in the constitution, not in the senate rules. you're jumping outside of the filibuster rule saying 67 votes
to change the rules. you go to the constitution. no place in the constitution isn't mentioned that a super majority is needed to change the rules. in fact, it just says i doubt the rules of its proceeding. and in only seven places in the constitution doesn't specifically mention super majorities for things like -- override of a veto or adopting a treaty, or something along that line. so i think that this gives every senate the ability at the beginning of the congress to look at what happened in the previous congress, and be able to tweak the rules. my hope is, really, as you move down the road to doing this, it brings everybody closer together. democrats and republicans, to try to say, you know, let's be fair to the other side, but hey, when we got a majority let the majority act.
the majority would then move to table it. and it's nondebatable and by simple majority. and therefore uphold the ruling of the presiding officer creating the basis for changing the senate rules by majority. >> let's go to another question over here in the left, the gentleman in the sweater right there, please. >> hi. my name is charlie zeto. is it on? i just have my 75th birthday so i've been around a while. and i worked on a lot of campaigns. there's a lot of intelligence up there in your work. and i've also run a lot of companies and let me just try and different stroke. we're engaged in two wars. we're recovering what we're disguising as a deep recession. it's a depression. we have a broken healthcare plan. and the people who are in charge are acting like a french court.
you're worrying about the rules. you're worrying about not hurting each other's feelings. how about some humility. how about some patriotism? how about some understanding that we the citizens are getting angry. it scares me the hell out of me that we're the most armed around and we have idiots running around with tea bags on their heads. let's change this rule. i'll pray for you and work for you whatever you need but let's get moving, guys. enough! >> just a brief comment. and i understand the passion. i think what you're going to see -- i mean, this is a debate by a very skilled and talented panel to try to educate on an issue. you're going to see from the congress and from the senate in the next couple of months major
pieces of legislation focusing on jobs and economic development and pulling this out of a recession. on financial reform to fix it so it will never happen again. healthcare reform and the president has put out there his proposal and i think we're going to get that done. and my guess by the summer -- we're going to have some major things in place. it's going to be big fights. some of it will be done under reconciliation. but it has to get done and it has to get done for the american people. >> with that we're going to close. i want to thank the center for american progress and scott lilly and staff here and the staff of the center for congressional presidential studies at the american university for their work. gentlemen, thank you very much for your remarks. [applause] >> and i think several people will be here if you want to come up and ask specific questions afterwards.
this event is about an hour and a half. >> good morning. my name is carla bowman and i'm senior fellow here at aei and a member of aei's political corner and i would like to welcome all of you washington early birds and our live c-span audience to the session of the past, present and future of the senate filibuster. in 1982 when norm ornstein and i were barely teenagers, we introduced a session -- a series of sessions at aei called politics watch -- called election watch, excuse me, and that is now the longest running election program in washington. but this year we decided to supplement the election programs that will begin in june this year with another session called politics watch where we would
look at the hot issues of the day. and i can't think of an issue that's hotter than the filibuster is right now. i'd also like to recommend you in another institutional announcement, if you aren't subscribers to our aei political report, this is a monthly compellation of the polls. you can give us your cards at the end of the session and we'll sign you up for that. i'd like to now turn the session over to my colleague, john fortier who will be moderating the session. >> thank you, carla. welcome to aei. i think we have the world's most distinguished panel of people who know the filibuster but more importantly people who know the senate and congress because the filibuster is another way of saying that there are deeply embedded rules and traditions in the senate that allow for unlimited debate in many ways. so we'll talk today -- some about the filibuster, some about cloture, one of the procedures that we use to close off the filibuster.
we'll also hopefully delve into some issues that are very pertinent interest today with healthcare being potentially debated on the floor in the next few weeks where we might use procedures called reconciliation. a procedure that doesn't require a super-majority as does breaking a filibuster by cloture. so we really have today not only some thoughts about a deep question that people have raised for many, many years, certainly going back to famously woodrow wilson where the question of should a majority rule in the senate and how should a legislative body operate? whether it's a good thing or not. whether it's being used more today than it should be. or appropriately. but also some very particular policy questions of how our debate on healthcare may proceed in the next few weeks. let me just say a few things about how -- to oversimplify how one might think about the role of the filibuster.
on the one hand, we can think of the senate as a very different place than the house. the house of representatives is a majoritarian party where they have strong control over their members. the senate is a more individualistic place where individual senators can debate, shape the debate, stall debate and often groups of senators and particular groups of senators sometimes in the middle of the political spectrum can come together in ways to craft solutions to political problems that are not necessarily the solutions of their particular leaders in the senate. i think that's one of the arguments that we may hear for the filibuster or for the rules of unlimited debate. that the senate is a different place. has a different kind of consensus and that maybe this type of procedure in the senate is what we might need in a time with polarized parties and not much of a middle in the political debate in washington. on the other hand, there
certainly are long-standing arguments against the filibuster or against the tradition unlimited debate against the need for a super-majority sometimes to proceed. that it's not democratic. that there's no majority rule. and that also that it slows down the senate and prevents congress and the political process from not only getting to something particular and of the moment and consequence like healthcare but also the many things that the senate and the political process have to do every year. getting through the budget. getting to authorize many bills that we don't think about in the very public political debate. but that the senate is often slower at and the ability to limit debate causes some sclerosis as some people have described it. so these are the large issues we're going to discuss today. we have panelists who will talk for about 10 minutes today. i'm just about to introduce them. we also want to have some debate among the panelists and then turn it over to the audience for
questions as well. i will start right here to my right with gary andres who's the vice president of public policy. gary is also -- had time in government especially in connection with the senate as the deputy liaison to the senate for legislative affairs for george h.w. bush and also writes frequently around town about procedural and process matters and is a public-spirited lobbyist. let's put it that way. sarah binder, a senior fellow in governance studies at the brookings institution. also a political scientist. a professor of political science at george washington university. the author of many books, several of them on this particular topic. of particular note, "minority rights majority rule: partisanship in the development of congress." that's in 1997. and then also "stalemate causes and consequence of legislative
gridlock." i'm missing another one i believe it on the filibuster. let me mention one more. another commercial here for an excellent book on the filibuster. "principle filibustering in the united states senate" also with brookings. robert dove served as the senate parliamentarian in the parliamentarian's office for 36 years in the united states senate. since retiring in 2001, he has been a counsel and taught at george washington university and from his time inside the senate and talking about it outside probably knows more about senate procedure than certainly almost anyone in washington but we're really happy to have him here today and talking about the -- not only the filibuster in general but i think we might be able to ask bob some questions which the current parliamentarian by both the republican and the democratic sides about how the debate of healthcare will proceed.
norm ornstein is a senior fellow at the american enterprise institute. the author of many books on congress. one in particular -- a recent book "the broken branch." it's in the tenth edition and the movie version is coming out next year. but a distinguished scholar of congress. a columnist in roll call. and one who has been involved in a number of efforts of reforming and improving the process, the legislative process, in washington. so let me now turn it over. i'm going to -- actually, i'll start with norm because i know norm may have to leave a little bit on the earlier side and we'll come down the panel on this way. we'll have norm, bob, sarah and gary proceed. >> thanks, john. the movie version goes on and on and on. i've written a weekly column for roll call, the newspaper for capitol hill for about 20 years and i would write occasionally
about the filibuster in the early times. but the last five years it's been a topic that's come up on a fairly regular basis. a couple of years ago i wrote a couple of columns back to back and the second one i said last week i wrote about the filibuster and people can't stop talking about it. that, of course, is a reality of our current and contemporary politics that this issue has come up more recently. and, of course, it's come up more recently in part because we've actually seen some change in the majority control of the senate, something that we went for a quarter century from 1954 on without seeing. and when the majority shifts, we almost invariably get complaints from the new majority as it realizes that it cannot act simply as a majority. and, of course, as we now see, we have the delicious hypocrisy that always happens when parties shift control and move from
being great defenders of minority's right of decrying the ability of bringing the entire institution to a halt. this has increased a great deal over the last few years as we saw with the frustration of republicans and the discussion of the so-called nuclear option by majority leader bill frist back when republicans were in the majority. moving -- at least considering to unilaterally change the rules in the middle of the game over judicial nominations and now, of course, the frustration over healthcare but not just healthcare. and i don't want to talk so much about healthcare because that issue, which is an issue of great national significance, is one that since we had a rule 22 would have been considered in the rubric of issues where you could imagine a filibuster. civil rights questions, other great issues where you have
intense feelings by a minority. the real reason that i focus more on the filibuster in the last few years has less to do with issues like healthcare and more to do with the democratic changes in the way the senate has operated more generally and the dramatic increase in the number of cloture motions and either filibuster attempts or feints at the filibuster in modern times and you can find tables everywhere. i wrote a piece for the aei magazine, the american, back in 2008 with a table showing the number of cloture motions over time. that just goes up dramatically in the last few years. and this frankly is a problem of the rule and much more a problem of our larger political culture. filibusters in the past were available for use. they did occur on an infrequent basis. and when they did, of course,
going back to the '40s and '50s, they fit at least in very rough terms the old mr. smith goes to washington pattern. not just one person taking the floor but a number of people -- the senate bringing in cots and going around-the-clock and getting at least some national focus on the issue until you either had the will of the minority broken and something going through in part because there was a public backlash against the minority position or a majority finally unable to get that super-majority which most of the time meant two-thirds of senators voting trying to regroup for another day. in recent years -- and this has seen a particular and sharp increase in the last three or four years, we've had very different use of the filibuster but let me also add that the
political culture began to change towards a much greater sense of individualization in the senate going back at least 20 years. and that is the -- basically the threat to filibuster or to bring the senate to a halt over nominations or bills done by individuals, not by a group representing a significant minority, you know, the 16 or so necessary to really formally call for a filibuster through the practice of the hold. the hold, an informal device not in the senate rules where an individual says that he or she will deny you unanimous consent if a leader tries to bring something up. it has been around for a very, very long time. but its use escalated especially over nominations going back particularly, i think, to the clinton years. maybe a little bit beforehand. but where leaders just began to tolerate the ability of individuals to simply
unilaterally block consideration of the nomination, not just for a couple of weeks or a brief period of time but indefinitely. and that set the stage, i think, for what's happened in the last few years. but what's happened in the last few years is that we are seeing filibuster or threats to filibuster used on routine matters and now used simply as a tool of obstruction not as a way to dramatize an issue of great national concern and have a great national debate over it. the best example to me this year was a bill to extend unemployment benefits. that saw two filibusters and then eventually passed unanimously. when a bill passes unanimously and you have a filibuster on the motion to proceed and a filibuster on the bill itself and all of the time necessary or that's in the rules to allow that to play out, two days after a cloture motion is filed, 30
hours of debate on each, you can tie up the senate in knots and basically just for the purpose of throwing gallons of molasses of the majority to throw it on routine matters or to make it worse, that damages the fabric of government it seems to me. and what we've seen is the combination of multiple holds on nominations and the process of clogging up the senate. it has meant that the basic elements of governance doing authorization bills on agencies and programs, doing appropriations, letting people get into government so they can actually do their jobs is being significantly damaged in a way that most people don't see but they are going to feel it in their day-to-day lives. another good example of that is the head of the general services administration.
effectively the chief operating officer of the united states had her nomination held up for about 10 months in the senate. and eventually was confirmed by an overwhelming margin. one individual doing this basically for no particular reason other than to hold up a hostage. so what to do? of course, there are people now who feel their views represented by the majority who just want to scrap the whole rule. i'm not one who believes that moving the senate towards simple majority action would be a particularly good idea. but there are ways of adjusting the rule to expedite the process and so that you can have a filibuster available for these issues of great national moment. put some burden on the minority if they're going to do it to perhaps operate around-the-clock and actually be there and move things along so that filibusters intended simply to obstruct
matters but not over issues in which they have great disagreement can't block the process for long. one of the biggest problems we have now is that any change in the rules requires at least some broader consensus. and so making even modest changes that could preserve the fundamental issues but moving it along will be very difficult to do without majority imposing its will on a minority and creating even more damage to the basic fabric of our political culture which is already so frayed. we can get into some of those specifics later. but it's simply important to reiterate that the problem here is less the specifics of the rule and more the nature of our political culture now, which is a very dysfunctional one in my judgment. >> i come here as a defender of
the senate as it operates right now. for a number of reasons. first of all, it is my belief that the fault is not in the rules but in the senators if the senate is not working well. the senate has worked, i thought exceedingly well in the past. both under a rule that required two-thirds to end debate. that was the situation when lyndon johnson was the majority leader. and when it was changed to 60. that was the situation when robert byrd was the majority leader. and it worked well. because both of those leaders knew how to play the game. and it is a game. it is a game in which the senate plays a very different role than the house of representatives.
and anything that would try to transform the senate into the situation that you have in the house of representatives i think would be a disaster. it is my view that the whole role of the senateñi is to be a forum in which it is difficult to pass legislation. and i agree that the senate is an inefficient legislative body but i think that is its reason for being. in contrast to the house, which is a very efficient legislative body where basically the speaker rules through the rules committee. the senate is not ruled by its majority leader. it's ruled by a consensus which
has to be built by both the majority leader and the minority leader. but as i say, it can work. and it can work very well. i personally remember the situation when president carter sent the panama canal treaties to the senate. robert byrd was the majority leader at the time. and those treaties were opposed by two-thirds of the american public in every poll that i saw. and senator byrd's job was to get two-thirds of the united states senate to vote to ratify it. he did it. he did it by reaching out to the minority leader, senator baker. he did it by basically traveling to panama and preclearing the amendments that would allow those treaties to be ratified with the panamanian government.
hard-working majority leaders who know how to play the game can operate very successfully in the united states senate under its rules, whether they were the old rules before 1975 or the new rules after 1975. i hear the comments on holds. i'd like to point out what a hold is. it's a letter. it's a letter directed to the leader of your party saying that you have a certain range of options with regard to something that may come up. those letters are very valuable to the leaders. they keep calendars in which all of those holds are marked so that they know what it is they will have to face when they want to go to something. it hasn't stopped them from doing it.
it gives them information. but those holds are a reflection of the enormous power of the united states senators and my view is that's why the people leave the house of representatives where most members have very, very little power. and want to come to the senate. where not only are they powerful but they have an incentive to work across the aisle. i can remember a senator who was a very conservative republican sitting in the chair and telling me that when he was a member of the house, he never talked to anybody in the minority party because they were irrelevant to his life. they couldn't do anything for him. in a sense he was talking sadly about the fact that he really
had no relationship with any member of the minority party in the house. and he was just glorying in the fact that in the senate, not only did he have a relationship with a very liberal democrat. the only reason the senate operates is because of those kinds of relationships. they seek out some common ground on some issue and then push forward on that issue. to me it is not that the senate doesn't work. it does work. but it works in a very different way from the house of representatives. i was told by the parliamentarian who hired me in 1966 that his view of the senate rules was that they were perfect. and if they were all changed tomorrow, they would still be perfect. that actually is also my view of the senate rules. but i do not think the problem is in the rules.
i think the problem in the senate is in the senators. >> thanks so much for including me. i have to admit bob and i both teach at g.w. and we often have students who are taking my class and bob's at the same time and it's not unusual for me to start talking about the filibuster and then the hand goes up. that's not what professor dove says. so it's an honor to go after you but i'm sure you will come back to respectfully disagree. but i want to take a minute to think about the senate's for lack of a better word what strikes me as byzantine ways of doing business. as we've been referring to the use of super-majorities, often the placing of holds, the requirement for negotiating unanimous consent agreements and so forth. and clearly the loss of the democrats' 60th senator is the predicament they face without 60 reliable votes.
i thought i would offer some reservations and first the nature of the filibuster and second of the politics of reform and briefly a little bit about the predicament that harry reid faces in the run-up to the midterm elections as majority leader. first on the nature of the filibuster, about almost 15 years ago steve smith and i set out to write a book about the filibuster when we realized there really hadn't been any systemic empirical look at the origins of the filibuster, the use of it historically or the consequences of using the filibuster probably apart from the movie "mr. smith goes to washington" and some historically treatments from the 1940s. when we got in the work of looking and thinking of all of this sort of history of the filibuster, you almost immediately encounter what we thought of first as claims but then we sort of termed more as myths about the filibuster and so i thought i would pick a couple of them out and we can come back to some of these later.
first, this idea of the claim that the filibuster is part of the framers' intent for the senate. that it has some constitutional basis or constitutional aura about it. when you go back to the base of the constitutional convention as well as thinking about -- looking at what the framers were saying about the articles of confederation, it becomes very clear the framers had no love for super-majority rules. they had lived under them under the articles of confederation and they didn't really like the experiences that they had trying to legislate under them. and neither do we find much evidence that the original construction of the senate rules that there was any priority put on requiring super-majorities. in fact, in figure we found the house and senate started off with identical senate rules until they cleaned up their rule book and got rid of the one rule book that could be used to cut off debate in the majority vote and that's the historically accident and we can come back to that later. the second claim we often hear particularly today is that filibusters were once reserved for the most important issues of
the day and that today it's become either newly politicized or taken on this partisan aura. when you go back into the history of the filibuster, it turns out particularly in the late 19th century much of our views and our myths about the filibuster are just that. that there was plenty of parochial and partisan use of the filibuster and that it was not reserved for the most important issues of the day, probably not until the civil rights era of the 1940s, '50s and early '60s. if you look at what was being filibustered in the late 19th century there are filibusters over appropriations bills, presidential appointments. the appointment of the senate printer. and many of the coalitions that emerge on these votes. we didn't have a cloture to study but if you look when you actually got to a vote, they tended to be partisan. so this concept that we have that if we just went back to original uses of the filibuster, things would be better, i'm not so sure that the history supports that. the third claim about the filibuster is essentially that
it does little harm. and if anything it does good because it moderates legislation. that's the toughest one empirically to crack. our myths are at times when the filibuster does good and the times it does harm. and clearly we can point to civil rights history in which decades the filibuster kept measures even from coming to a vote on the senate floor. this issue of whether the filibuster moderates legislation -- it's very tough. and the best we can do is certainly to find that there's no necessary connection between pleasing the 60th senator and getting his or her vote and making measures more moderate. and that's certainly the case on nominations where we can't divide up the nomination. you can't moderate a nomination. either you get it or you don't. and so we might think that filibustering of nominations is different because there's no moderation involved there. on this question of whether, in fact, you do get changes forced by accommodating the 60th senator that improve measures,
we can find evidence in favor of that and we can find evidence about that. we think of the ben nelson the cornhusker deal. what it took to get senator nelson's vote for healthcare reform. i don't think that medicaid deal was moderating. and certainly if we live in a senate as many folks have talked about with liberal democrats sort of clustered on the left -- i guess that's your left and conservative republicans clustered on the right, the 60th senator is not very close to the 51st. in fact, you might have to travel quite a distance to find a policy change that accommodates the 60th senator. let alone this 70th or the 80th to build a coalition. i come out of that claim a mixed set of evidence whether, in fact, it does good or it does harm. finally, we also take a look at the claims that the rules are stable. that rules 22 is impervious to reform because the majority prefers super-majority rules. and as the more you get into that, it turns out that's pretty tough to test as well because quite often when motions and
efforts to reform the filibuster have come up, it's hard actually to get a majority on record because there's a filibuster getting to the vote on reform. so we can come back to some of these claims but by and large many of them have no basis in the history. many of them have more mixed evidence. on the second topic here of the politics of senate reform, when steve and i first started our book, i was here in d.c. in '93 and i noticed a group was set up on k street when clinton came into office and we had a unified democratic control. and the banner outside the office and the name of the group was action not gridlock and it was a group set up to push for reform of rule 22. and i clipped a couple articles of '94 and then in '95 for the change of party control. let me find action gridlock to see what they're talking about. they closed up shop. i could not find them anywhere. they could at least cut up the banner. action but not gridlock but it
points, i think, to the situational ethics that persuades people's views about senate procedure. and that is where you stand depends on where you sit. senators like to cloak their procedural principles or position in principle but it's about politics. there are very few -- not to say there aren't any but among senators there are very few procedural purists in the senate. and we certainly see that played out in views about reconciliation and whether it's appropriate to use in this instance or whether it's ever been used like this before. finally, on this issue of reform, i would just remind us that debates about rule 22 and debates about changing the way the senate works, these are not new to 2010, right? these are debates that senators themselves have had for over a century. we had them in the 1990s. 1980s. we had them in the 1970s, 1960s. we had them in the 1920s and the 1910s before cloture reform. we had them in the 1890s and 1850s back to the 1830s. these are not new debates.
senate leaders actually have fought for filibuster reform for nearly 200 years but more often than not those efforts for filibuster reform have themselves been filibustered. okay. finally on reid's predicament here, i think that senator bunning incident over unemployment benefits and the refusal to grant consent to move to a vote is pretty instructive to folks who do not pay attention to the floor process. it's easy to take the floor hostage if you're willing to stand on the heat. if one senator here with a little bit of party support is willing to take the senate hostage, you can imagine that the predicament that the majority leader finds himself in. that he has relatively limited tools in order to move the senate to the basics of a vote. and, of course, the majority leaders' job made harder by very cohesive republican team play and not so cohesive democratic
team play on many issues. i would conclude by suggesting that we shouldn't feel too bad for senator reid. he's not the first leader to confront these issues. and we've seen a whole host of issues of leaders since the '70s try to grapple and to innovate and try to come to terms with the difficulties of legislating. in fact, there's one leader asked once about a rule that would require or provide majority cloture, majority debate limit in the senate. and that leader said, quote, that rule would everywhere be hailed as one of the greatest improvements of the age. henry clay? 1841. i'll stop right there. >> great. thank you. well, thanks for having me. i wanted to talk a little bit about the filibuster from my own experience of having worked in the white house. as john mentioned, i worked for both president bush 41 and then
did a brief stint doing confirmation with president bush 43. so a lot of my views on the filibuster is kind of shaped from that perspective. i think where i come down on all this is that i agree with bob that i wouldn't want to change the senate rules related to legislative filibusters. and i'm going to get into a little bit why that is in a minute. i have some more mixed views about changing the rules or procedures related to judicial and executive branch nominations partially because of the battle scars that i have so from trying to push some of those people and nominees through the process and some of the experiences that i had with that. let me talk a little bit about just kind of the whole dynamics, though, of the filibuster reform discussion. i think part of it is really shaped by short-term events.
i mean, we're having this event today and talking about filibuster reform. i think, you know, as sarah mentioned, it tends to come up a lot in the context of unified party government. and that's when one party controls both the white house and the congress and kind of want to push things through that you hear a lot of discussion at that point in time about filibuster reform. i will say this, that when president bush 43 was re-elected in 2004 and he wanted to push social security reform through the senate in 2005 and was blocked, there wasn't a lot of discussion then that i recall at least from the democratic side about the need for filibuster reform. so i think, you know, to some points that some of the panelists have made kind of, you know, where you stand does matter depending on where you sit.
i think in many ways, though, the proponents of filibuster reform really drive -- their argument is driven by valuing one thing maybe more than anything else and that's legislative efficiency. and my point from kind of having observed the senate, studied the senate, you know, worked with the senate is that i'm not sure that legislative efficiency should be the primary goal that we're kind of after when we're talking about the senate. i think there's other values there. sarah talked a little bit about the historical context. so i won't spend a lot of time on that. but i would -- i'll give a plug for her book -- or books. i learned a lot about some of the things that happened particularly in the 19th century when it related to filibuster reform. and there are a lot of myths
about the filibuster. i mean, one of the things that they talk about in their book is that, you know, people tried to reform the filibuster often during the 19th century. and they did reform it successfully in the 20th century. i think if you go down kind of down the list of the various changes that were made, you know, you had changes obviously in 1917 when rule 22 was first adopted. and then you had further changes as sarah points out in her book in 1949, 1959, 1975, 1979 and 1986. so there have been changes in the filibuster rule over the years. it's not like it's been this kind of stagnant process that hasn't changed and that's something that's kind of going to continue. the bottom line, i think, of all
this is that reformers -- or people who want to reform the filibuster rules i think in many ways are trying to drive the senate to look more like the house. and i think that's a fundamental mistake. and while again one of the things i learned from sarah's book is that the -- you know, it wasn't that the founders necessarily wanted the senate and the house to share identical procedural rules. it was never really much of an issue at the time. i think a lot of people would agree that they did want the two institutions to be different. they wanted there to be some kind of institutional distinctiveness between the two bodies. and to the extent we focus a lot on efficiency in trying to move things through the senate in a really quick manner i think it tends to make those two institutions look more alike.
and i think that's a mistake. former majority dick armey, one of my favorite political philosophers, used to say, the pain is inevitable but the suffering is optional. and i think, you know, if the majority in the senate is going to do exactly what the majority in the house is going to do, you know, why go through the suffering of even waiting? so i think that's something to keep in mind. filibusters do have their costs for the majority in terms of transacting a partisan agenda quickly. but again this is, i think, where we need to kind of widen the lens. so i think that there are other things -- other values that we should look at in terms of what the senate is trying to accomplish, you know, is it, you know, quick legislative change or quick policy change? is it creating more programs or more rules? is it just creating legislative accomplishments? i think one of the things, you
know, to norm's point about how the people in the senate have changed or the senators themselves are more partisan now, political scientists like gary cox and matthew mccubbins talk about this concept of team production. that now in the congress there's a lot of emphasis on team production and that's a function of a more polarizing senate. are our only overarching goals to get things done quickly? i'm not sure that it is. big issues like healthcare and healthcare having a hard time getting through the process now, kind of again drawing more focus on the issue of changing the rules, but, you know, what about some of the other values? what about building consensus in the senate? what about protecting minority rights? what about the notion of even
policy stability? that was actually one of the things, i think, that the founders had in mind particularly james madison in terms of the design of the senate. they didn't want to have just another institution that would change things real quickly. you know, there have been a lot of proposals out there about changing the filibuster. bob walker, a former republican congressman, wrote a piece a couple months ago that i thought was kind of interesting where he was actually arguing to move in the other direction instead of maybe having a three-fifths vote for a filibuster, he was arguing to go back to the two-thirds. and his -- his idea is that when the three-fifths rule was put in place nobody ever contemplated that one party would get to that point. well, they did. after the 2008 election. his point was that if you went back to two-thirds people would realize going into the process that you needed to have a broader consensus and that might
foster more consensus-building and bipartisanship. again despite all the concerns about the impact of the filibuster on the senate, i'd also remind people that, you know, things are still getting done. you know, in recent times, the congress and the senate passed no child left behind. you know, the government hasn't had a shutdown since the 1990s. more recently, you know, the democrats have been able to move through stimulus legislation, schip legislation through the process. so things are getting done. i went back and looked at some statistics on the number of laws that have passed the -- or i'm sorry. the number of bills that have passed the senate over the last 20 years thinking if filibusters were an increasing problem, that the number of bills that the senate would pass would have also declined.
and while there has been some reduction in the number of bills, the average over the last 20 years was about 551 bills passed per year. and last year it was 478 so it was a little bit below the average but you have to actually go back all the way to 2001 to find another year where the senate passed less bills than the average over the last 20 years. so anyway, just to conclude on the legislative side, i'd say that, you know, we don't want the senate to look more like the house, to become more like the house. i think there have been a number of changes in the senate rules already over the past two centuries that have moved it in that direction. and getting rid of the filibuster or changing it significantly so that the senate becomes a pure majority rule institution, i think, would be a mistake.
just a couple last comments on the other piece of where filibusters come in to play and that's in judicial and executive branch nominations. i think there may be a little bit more of an argument to make some changes there for this one reason. once you get into a situation where senators are using procedural rules, procedural power, to basically block the executive branch from installing people into place, it has an impact on more than just the senate or just the congress. it becomes very hard for the executive branch to do its basic functions. and the other point i'd make is that the problems with nominations and holding people up in the senate is really not just a partisan issue, too. we faced a number of problems in
2001 trying to get the bush administration people confirmed that were actually being held up by republican senators for one reason or another. and i could go into a few of the specific examples of that later if you'd like. but it wasn't just a partisan issue. it was people from the president's party that were holding people up and i think the same is going on today to some extent. so let me just conclude by saying i think it would be a mistake to try to make the senate more like the house. i think changing the filibuster rules is another step in that direction. although i have maybe a little bit more sympathy for doing something on the nomination side. >> let me have some discussion on the panel here but i do want to throw one other issue on the table which i think is in many of your minds is the process of reconciliation. in fact, i'll let our panelists give a better definition than i will. but it's certainly a process
that came out of the budget act which will allow some matters to be considered without unlimited debate and ultimately be decided by a majority vote. so when is it appropriate -- i point to norm's column on the "new york times" a couple of weeks ago which had a chart of when it's been used and sort of some of the various circumstances for your reference. but when is it appropriate -- but more particularly what are the potential pitfalls that the process will hold for using reconciliation for making some changes to what we think will be the passage of the senate bill through the house and some additional changes through this process. what are the pitfalls and i want to engage bob dove on this. could we imagine this being pushed further where there's some talk that maybe within the reconciliation process there might be other methods of delay? in particular the proposing of endless amendments at the end of
the day of reconciliation where maybe some new ground will be broken procedurally as to whether that should allowed in this process which typically doesn't allow unlimited debate but maybe through the proposal of endless amendments we may come to a continuous loggerheads and have some significant changes made so i'll open it up to whoever. >> just a few comments that build on where i started. it's great to have historical perspective. and i think most of us believe that we won't want the senate to look like the house. the real challenge today is how can you operate with these rules in a sharply partisan, ideologically polarized and hyperindividualized senate where you have 60 times as many cloture motions as you had in the period before the reforms of the 1970s. where you had four times as many as you did when bill clinton became president. and they're done on routine
matters and those that have overwhelming support only for the purpose of delay. and there's ways of dealing with that while preserving the basic quality of the senate. the notion that you can have two bites at the apple on a given bill, a filibuster on a motion to proceed and then a filibuster on the bill itself. and each one takes days out of the senate's limited time to actually do its business, it seems to me is easy to change in concept although, of course, getting votes for anything will be difficult. having 30 hours of debate on each of these motions -- if you simply said it's divided between the majority and the minority so that you can only delay for 15 hours would be a nice little thing to do. i don't see any particular reason to have a two-day layover over a cloture motion is filed. you know, you can take six or seven days on any given cloture motion and what that does is even though you're getting bills passed, authorizations aren't
done anymore because it just takes too much time. that damages the fabric of governance. the hold is a nice thing if you have a notice. but we're now having dozens, even hundreds of nominations held up not because people object to the nominees but as hostages for other things. it's wonderful for senators to have individual power. when you have the human cost of people who are making the sacrifice to come to serve in a position in government and they're left twisting in the wind for months or even years, can't move their families. have already announced they are leaving their jobs, for no reason other than leverage for something else, there's something wrong there. and finding a way -- and there are ways, i think, to reserve filibusters for issues admittedly it wasn't used that way when any individual could take the floor and go on and on and on. it was individual leverage. but at least for significant issues where you have an intense minority feeling. and then have a limited time and
get to an action or a vote on nominations or bills that don't reach that point is theoretically doable. admittedly the chances of reform where you need two-thirds of the senators to go along are as george w. bush would say slim to none and slim just left the building. and just finally, broadly on the reconciliation point the majority under those circumstances is going to look for every tool and leverage that it can find. there are tools in the senate where you can bypass. they're crude and imperfect tools. they have been used regularly by both parties. of course, what we know from the history of reconciliation is that it's been used for sweeping legislation affecting far more than one-sixth of the economy. $1.6 trillion of tax cuts that cut across every area of the economy being among them but these are not the tools you would hope to use to make basic policy. more and more we're going to end up with ways to bypass the basic process.
unless you can find some fashion of moving back to at least some reasonable sense of comity. >> would like to say something about reconciliation? >> let me talk about reconciliation because i was part of the group in 1974 that wrote the budget act. and i remember as we discussed the reconciliation issue which we discussed maybe for 10 minutes because it seemed like almost a ministerial function. i mean, the name reconciliation comes from the fact that what it was supposed to do was reconcile the difference between the appropriation bills which had been passed in the summer and the second budget resolution which doesn't even exist anymore that was passed in the fall. and it was seen as a very minor thing.
we came up with really a couple of ways of dealing with that issue. one was to hold back on sending those appropriation bills to the president in which case we would pass something called a reconciliation resolution to change those bills or if they had gone to the president and were now law, that this bill would make those minor little changes. it was never used for that purpose. but in 1975, just a year after it had passed, a very canny senate committee chairman russell long of louisiana came into the parliamentarian's office and he was having trouble with his tax bills. because of the senate rules. people were offering amendments to them that he didn't like. they were debating them at length. and he didn't like that.
and he saw in the budget act a way of getting around those pesky little problems. and he convinced the parliamentarian at the time -- i was the assistant, that the very first use of reconciliation should be to protect his tax cut bill. and so in 1975, you had the very first use of reconciliation. and i will say that a number of democratic senators were, one, surprised. and, two, appalled at the fact that they no longer could offer any amendment that they wanted to his tax bill. that they were going to be limited in debate time to 20 hours. you know, in the end he didn't win because president gerald ford vetoed that first reconciliation bill. but to me that was the first
indication that what was designed as a very minor little thing could be radically changed. and then in 1980 it was radically changed. in the spring of 1980, which under the budget act as it was written at that time, you never should have seen a reconciliation bill. suddenly the majority leader of the senate, robert byrd, decided that in order to confront what was seen as an economic crisis, namely inflation rates running at 13%, interest rates running at 17%, that the answer to that economic crisis was to balance the federal budget. ...
he was going to give instructions to all series of senate committees how they were going to change their programs to reduce the deficit to zero. in the end, of course, he was as disappointed as senator long because even though he got his bill and it was passed that year, the country went into a recession in that summer and a recession you don't balance the budget. and the result was not a happy one for him. >> and the result was not a happy one for him. and i think he was particularly unhappy because having created that bill in the spring, when the republicans took the white house in that november election, and the senate, they said to themselves, aha, what was sauce for the google the sauce for the
gander. and we will do a reconciliation bill only at will be two implement the reagan economic program. and they proceeded to do just that. democrats still controlled the house. they thought they could thwart that. and unfortunately for the speaker, a group of democrats and the house, led by then democrat phil gramm, voted with republicans, defeating the rule on the reconciliation bill, which is almost unheard of in the house. and basically we were off to the races on reconciliation. and for the next four or five years, reconciliation became a way of passing, in my view, just utterly outrageous things. i remember the senate commerce committee, i think it was in 1983, decided they've been having a lot of trouble with their legislative agenda.
why not just send that an entire agenda as part of their reconciliation language and have it included in the reconciliation bill. and there was no vote against that. and so in the mid '80s, the senate adopted what is now called the byrd rule. to keep that kind of thing from happening. but the result has not been happy. i wish after many things i could undo in my life, it was ever helping create the reconciliation process in the budget act. it is now a monster, and it is showing its monstrous qualities repeatedly as it is used by both parties. and a result, unfortunately i think, is to eliminate what is to be the glory of the senate, which is its ability to debate and amend. the amendment process is
severely limited under reconciliation, as is debate. and both parties have been guilty of using this cheap shortcut to stop debate on things that i think ought to be debated and ought to be amended. >> that is perfect. >> as i have always said, the senate rules are perfect. [laughter] >> anyone else want to weigh in? >> try pressure on one last point, on the reconciliation process, is going to -- would result in a finite debate but there is some talk about the question of republicans being able to offer dilatory amendments, and whether that might cause the parliamentarian or the chair to rule somehow that there is, those are out of order. without getting too in the
process here, what's your thought? >> there's no such thing innocent as dilatory amendments, and let your using the cloture rule and you are under cloture. for amendments to be ruled dilatory, outside of cloture, would be a total departure from senate practice. it has never happened. i hope it doesn't happen now. >> okay. we're going to open it up to the audience for questions. and if you would please, we have a microphone here, coming around. if you could identify yourself. >> i'm don ritchie, the senate historian. we answer a lot of these questions so i'm glad -- former senator eugene mccarthy uses it was a worthwhile learning the rules of the senate because they were suspended all the time.
they ask unanimous consent not to read the entire bill and go through all these processes. are some of the rules of the senate essentially the schedule organs of bygone era that don't serve any purpose other than to provide some way to slow things down? i think about the reading of the bill. we came up with and disseminate couple of occasions that seem to have no other purpose, other than to take up time. >> i'm asking everybody but i think bob is probably the one. >> it is true that the senate rules, most of which were written in 1884 at the time that the senate didn't have the post of majority leader or minority leader, and were designed to put this in on the kind of autopilot and require certain things to be happening during the day, are not used.
and it is quite possible that if you wanted to go through those rules and find those rules that are not used, you might find some. interesting enough, since i heard the comment that it's outrageous if you have to debatable motions with regard to ago, one, the motion to proceed, and then the bill itself. actually, if you follow the senate rules, there's only one debatable motion because the motion to proceed to a bill during what is called the morning hour, which of course and senate logic is two hours, the first two hours after an adjournment is not debatable. and senator byrd knew that, and regularly use that rule. majority leaders have and use that other than senator byrd. i'm not sure exactly why, but i always kind of, in the back of
my mind, not one of the reasons they might not use it is that it's a nice tesco. you make a motion and file a cloture on and if you can't get the cloture, you have wasted absolutely no time on the bill because the motion can be withdrawn. you have the vote. if you don't have 60 votes, what's the point of proceeding? that's at least the supposition that i have about the fact that that rule is not used. but it is true that the that rule does exist, and could allow the senate to get to any bill by a non-debatable motion. >> i would add to, that the house has a lot of rules as well that may be considered vestiges of the past and are routinely waived. so it's not just the senate that does that. >> let me break in on the house rules, because i've been
criticized as so often i house staffers, that the senate only has two rules. unanimous consent and exhaustion. my view is the house doesn't have any rules at all. it has the house rules committee, which is just a wonderful way of changing the way they take up bills by bill by bill. and absolutely no attention to that very thick rulebook that is in the house. >> just to comment on dawn's point. i actually, having said that chances of changing the rules are slim to none, i would offer a caveat to that. i've actually had some conversations with at least a few republican senators who are interested in cleaning up the rules all little bit. and we may get a test to this in the reconciliation issue, not just with a number of amendments offered, but i can imagine someone tried to offer a 500 page amendment and then insisting it be read as another
way of stretching out the debate. and there may well be at the beginning of the next congress enough votes to streamline this process so that you at least to begin to return to the use of the filibuster for something that people actually oppose and a significant number of them do that you've got to move to a super majority, and not just one individual denying unanimous consent and having debates stretched out in a way that brings discomfort to everybody but that it has nothing to do with an intense minority viewpoint, except by one individual. >> i was just going to wait for a second. just another way of thinking about these questions and to respond to bob's point about, look, there are other non-debatable motions in the senate rulebook. and why don't leaders use them? if i had to step back and look from the '70s to the present, there is the sort of procedural
arms race going on between often ties between the parties, certainly in the '70s. where majority leader and counters a form of obstruction, and so he changes the practice to try to do with that obstruction. so today we have precludes. he goes in the nose is sent out to get clearance for a bill. but they didn't always do clearance, but when the majority leader institute clearance, then it's an easy opportunity for the minority or others to register a complaint. and that, of course, then pushes the majority leader to try a new tactic. and then of course that begins other responses, and so today's latest response of course it probably that astronomical number of cloture votes that norm pointed to. that's not an isolated problem. that's response to the ways in which the senate has developed if the majority leader were to take the byrd strategy of using the morning hour and go to the motion to proceed, not debatable. what other responses with that
provoke? and then the exponential increase might be we don't talk about anymore because there is some other problem on the floor. so it's the dilemma i think for majority leaders to try to figure out how are you going to solve this procedural arms race that shows no sign of stopping. >> if i could say one response that hasn't been discussed, is the majority leaders quote filling the amendment tree. that has been used, i think, repeatedly in conjunction with cloture vote to, in effect, put the minority party in the position of either voting for cloture in which case they'd lost their right to amend, or voting against it. at any one of the glories of the scent is the right to amend. and that use of filling the amendment tree by a majority leader to restrict and just basically eliminate the right of the minority to offer amendments, to me, is a part of
this whole war that has escalated on the senate floor. >> bob, could the majority leaders use filling the tree to head off a filibuster by amendment? >> at some point those amendments get disposed of, and at that point then you can offer endless amendments. so it would not eliminate amendments, but it could be used to preclude them for a considerable period of time. >> i will immediately confessed to be a totally ignoramus when it comes to anything that happens on a hill, much less the senate rules. but norm, i would have to just make, as the victim of a hold under bush 41, want to assure
the practice was alive and well much before the clinton era. my question really goes to on the unanimous consent issue. and why is it that the senate permits itself to get put in the position of being held hostage to needing unanimous consent? in the case of bunning on the jobs bill, couldn't the senate with foresight that put that bill in train so that it was not subject, so that unanimous consent would not be required? >> well, the use of unanimous consent agreement as a regular practice was perfected by the majority leader in the '50s, senator lyndon johnson.
and he would preclude those unanimous consent agreements through his contacts that were referred to in the '50s as the club. and, friendly, it worked very well. now it is true that any single senator can object to a unanimous consent agreement and that frustrates whoever is trying to get it. but the use of unanimous consent agreements is simply a reflection of the enormous power that individual senators have. i don't know how you're going to eliminate the senator's right when anybody asks unanimous consent to do anything, to simply say i object. >> go back here. >> minus steven roberts to undergraduate for religion civil society at the heritage foundation. perhaps this is just me being an old fogey, waxing heavily for bygone days, but when folks use
terms like byzantine and outdated to describe some of the senate rules, i got automatically cringe because it seems history has proven that a lot of these things actually do work, especially as opposed to these modern paradigms of efficiency. and for you folks who have a good knowledge of the history of the senate, i'm wondering if this is merely an expansion of the old jeffersonian, you, john adams debate over a country of laws, country of men and women of the senate is necessarily supposed to be in efficient as a restraint upon popular wins so that we don't quickly evolve into a country that forgets its history and becomes captive to those subject of ethics on capitol hill that you mentioned, ma'am. >> is a very reasonable question. i think i would think about it this way is i'm not sure the choice between changing senate rules on the one hand and efficiency. i'm not sure the opposite
filibuster we are seeking efficiency. if you go back to jeffersonian views about the senate, who actually he wrote sort of the guidelines for the scent and senate rulebook, they believe that the senate should come to a vote. there wasn't any evidence here that their ruminations about sort of the minority rights and so forth and individual rights, that there should be a vote in the senate. and the fact that the filibuster prevents of getting an actual up or down vote, that's not instilling efficiency. that's sort of a matter of creating a real legislative body. i can come up, now that i think about it, i can't come up with sort of a theoretical basis for a super majority threshold. what's the basis for it? how do we get to the magic number of 60? well, one answer is it's arbitrary. and that's not very rewarding theoretically. the other edge is that a sort of the outcome of political bargaining in 1975, and that's not very rewarding philosophically or theoretically either. but we do have a history of majority rule, both classically,
right, and i don't think to say, to think about the rules that were necessary seeking efficiency, that there is some of the value there that is being sought by trying to find a way of amending rules that would lead the senate as a legislature to be able to cast up or down votes. >> you know, one point i would add to that, and and goes back to some, the comments i was making, is that i do believe that the founders wanted the senate to be almost like an interinstitutional check and balance. they wanted it to be a different type of institution in the way it operated. and one of the things that we have seen over the years is, not only chance, but actually successful attempts to change the senate over and over again, so that it operates more like the house but it isn't completely gotten there but it is moving in that direction. one of the things that, in
addition to the changes in the filibuster rules that i outlined that have been done repeatedly during the 20th century, is even more recently than that, reconciliation is another example of how the senate rules will allow major pages of legislation to move through. unit come with certain timer garments and things like that. but it's not in effect right now but we have done that over the years on trade agreements as well, as another example of where the senate rules have been changed to make it more efficient, i think. and i'm not sure that's always the highest value. >> i will turn back to these questions i want to fall on something that sarah said. sarah mentioned that 1970s, we had more cross party coalitions for and against the filibuster, and against the majority. and that was true of much of the 20 century, that our parties
were not as polarized as they are today. so does our situation today with the parties and most voting studies show that the parties really are well situated on the right and left of each other, is that putting more pressure on the senate, more likely, that we will see these continuing, not only times when apart has 60 votes or just short of 60 votes, but a party in the senate pressure from the house, the house was often a place that stalled reforms as well because the fractured coalitions, is that putting more pressure on the senate and senate rules? >> i would offer one way of thinking about that. it's the issue that procedure has become a matter of, it's become a party cause within the democratic caucus and republican conference. and that's become the issue. so that we get not only sort of polarization on the policy issues, but they're sort of partisan team play that gets added on top of it and that gets played out through boating on
cloture, old pushing the majority leader cafaro cloture motions and the majority leader always thinking have to file a cloture motion. it's all about procedure all the time and then, right, it's very tart i think you on wind from that once it all becomes about procedure. >> i think another thing that's happened as the members have become more polarized is both parties, republicans and democrats, whether they are in the majority were the minority at a particular time, the minority party has kind of recognize that hanging together maximizes their power. and i think that's maybe something that didn't, wasn't, maybe didn't always exist that way but that's certainly seems to be something that operates very often right now. >> okay. will come here and then here. >> the microphone is coming right here.
>> my name is james. i work on a hill in the senate and my question in the popular and academic narrative about the filibuster, basically cloture is always used as a measurement of minority extraction is him. my question is to what extent is it a measurement of majority obstructionism. it seems to me that several occasions where when a bill is brought to the floor for debate that the majority leader, even after proceeding to it will fall under file cloture on the same day that they will do it in an effort to hold off a menace on the minority party member's and if you look at a lot of the bill's final passage, the breakdown partisan breakdown of the final vote, is actually quite bipartisan. i think if they were given the opportunity to offer a few a minutes maybe would necessary translate into an endless cloture battle. >> while that was actually the point i was trying to make, when i bought up the whole issue of filling the amendment tree. which to me is another side of
this coin. the jurisdiction of the senate to fully debate in freely amend, and anything that attacks those two traditions, i think is a promise. >> i would just say it's very hard for political site is like to take those numbers and disentangle the two alternatives that julia. there's ask obstruction to the majority leader he needs to file cloture on the fact that the majority leader wants to have some certainty so he files cloture. those are sort of observation equip because i just had the cloture vote. each side has different views about it. and the majority side would give you counter evidence, well, no, we couldn't get consent, unanimous consent agreement. we weren't willing to agree to those a minutes but the minority party will give you a different view. it's tough to arbitrate between those, between those accused. >> and sometimes it's not just stopping them, the minority from offering amendments because the
majority leader wants to move the process along, oftentimes you filled the amendment tree because you are afraid there's going to be politically embarrassing an image that could be offered as well. it's not just i did with the process along but trying to maybe protect your caucus, too, from politically embarrassing votes. >> hi, my name is mimi marziani. i'm an attorney for the brennan center for justice. to me what's most of the about the filibuster, as it is playing out in the current senate, is that it leads to a lack of accountability. i mean, this is not, i heard a reference to a game. this isn't ask it again like these people are supposed to lead our country. and the combination of the stealth filibuster and anonymous holds, and then constant filibusters that lead to constant obstruction. we have a situation where people
are not actually making decisions where they're supposed to make decisions. and i would just love to hear your thoughts on that and understanding that there is some important reasons to keep the senate rules as they have historically been, you know, whether not, we could reach a point where this is so troubling for our, you, little d democracy that something has to be done. >> since i'm the one who referred to the senate as a game, it is again in the sense that there are very intricate rules. and it's important to be able to use those rules to play it. and i will say that sometimes i am reminded of what casey stengel said after coaching the mess in the 1960s, doesn't
anybody here know how to play this game. it can be played. it can be played very well. it has been played very well by a couple of leaders that i mentioned, lyndon johnson and robert byrd. so that i don't think the problem, frankly, is in the rules. >> you know, one thing i would just add to that, i am not sure if it's directed on your question, but i think it's important to keep in mind, is the rules and the way that they are applied will the is constantly kind of changing process to some extent. so i'm not sure that, just because there are some problems right now in the way of that that's necessary always going to be the case. i mean, going back again using a house example, in the 19th century the house had big problems towards the end of the 19th century with a
obstructionism and disappearing forums and things like that. there was an adaptation that was made to correct that. and i think as these things can a player over time is going to be either adaptations in the rules or adaptations in the way and the way the senators opera operate. >> right here. >> hi, my name is adam foster i had a quick question for professor dov. in a world where the most liberal, most conservative democratic senators is generally more liberal than the most liberal republican, what measures would you say that the current majority leader or future majority leader can employ to kind of bridge that gap like you were talking about, in the '70s? what avenues are available that they are not using? >> the same avenues that were used by senator baucus in the finance committee last summer
when he managed to get the vote of olympia snowe for his bill. those opportunities are out there right now, and being followed up by, for simple, senator lindsey graham of south carolina, working with senator kerry on the issue of climate change. to me, those opportunities are not gone at all. and it is the way the senate operates. you do need to form some sort of the bipartisan consensus to pass important legislation. >> i want to take the opportunity to ask the last question here of the panel. i think all of us, we talk about reconciliation but maybe we could ask the panelists to give us a preview of what we might see in the next several weeks or months or so of procedure dealing with the health care bill. what are the things you would like to highlight, what are the likely, welcome what's the likely course of health care bill and what the likely offset goes and what would you, what's
your topic is something that we should be watching for that we might not be? >> i can go first, and just say that i think that the real challenge is going to be actually passing the senate bill in the house. and so i think is probably the main thing to look at. i think the fix is that they may try to make and reconciliation in the senate may or may not happen. and, you know, there's the issue of which things could get knocked out on byrd rule violations that i saw the other day that senator mcconnell had a letter from all 41 republican senators saying that they would hang together on not voting to waive the rules on